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TMI Blog2010 (12) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of the goods cleared from their factory was available as Cenvat credit to their factory located at Bahadurgarh, Haryana, there could not be any intention on the part of the appellant to evade the payment of duty. As the major part of duty demand is also hit by limitation, there is substance in the appellant’s plea for waiver from the requirement of pre-deposit of duty demand, interest and penalty. The stay petition is allowed. - E/1381/2010-EX (BR.) - 1081/2010-EX(PB) - Dated:- 6-12-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Shri A. Samad, Advocate, for the Appellant. Shri I. Beg, SDR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. This is an application for waiver from the require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 25(1) of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. This show cause notice for recovery of short paid duty was issued by invoking longer limitation period under proviso to Section 11A(1) of the Central Excise Act, 1944 alleging that the appellant did not submit the details of the cost of papers cleared to the Bahadurgarh unit in spite of reminders by the Range Office and hence, and accordingly have suppressed the material facts from the department with intent to evade the payment of duty. The show cause notice was adjudicated by the jurisdictional Asstt. Commissioner vide order-in-original dated 26-6-2008 by which the duty demand of Rs. 3,00,240/- was confirmed against the appellant along wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority showing the calculation of the cost of production of the paper cleared to their unit at Bahadurgarh but the same has been completely ignored and neglected, that the appellant have a strong prima facie case and hence, the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of their appeal. 2.2 Shri I. Baig, the ld. Departmental Representative, opposing the appellant s plea for waiver from the requirement of pre-deposit pleaded that the appellant were required to pay duty on the basis of 110% of the cost of production and instead they had paid duty on the transaction value, which is not correct, that the fact that duty had been paid on the basis of transaction value had not been disclosed to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able value would be the price to independent buyers. Since from the facts available on record, it appears that the appellant had sales to the independent buyers, we are of the prima facie view that the duty in respect of the clearances to Bahadurgarh Unit for its captive consumption has been correctly paid on the basis of the transaction value to the independent buyers. Moreover, we also find that the appellant s plea that even if the duty payable is calculated on the basis of 110% of the cost of production determined on the basis of the CAS-4, the duty payable would be Rs. 6,57,373/- which is more than the duty paid by them, has not been considered by the Commissioner (Appeals). Besides this, we also find that the duty has been demanded by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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