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TMI Blog2013 (7) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... d Assemblies Ltd., Pune. The said order-in-original dated 31/08/2009 confirmed a duty demand of Rs. 46,36,869/- short-paid by the assessee under Section 11A(1) of the Central Excise Act, 1944 apart from confirming the demand of interest on the said amount of duty under Section 11AB of the said Act and also imposed an equal amount of penalty of Rs. 46,36,869/- under Section 11AC. Of the above amounts, the party has paid an amount of Rs. 15,79,550/- which has been appropriated and they have requested for stay of the recovery of the balance amount pending disposal of the appeal. 3. The issue involved is regarding inclusion of the value of the scrap retained by the appellants while doing job-work for M/s. Tata Motors Limited and inclusion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Auto Limited vs. Commissioner of Central Excise 1999 (112) ELT 340 and (2) Lawkim Ltd. vs. Commissioner of Central Excise, Pune-II 2007 (218) ELT 142. The second plea is that the demand is beyond the normal period of limitation and is not maintainable since there is no positive/deliberate act of suppression on their part with intention to evade payment of duty and reliance has been placed on a number of judgments such as Continental Foundation vs. Commissioner of Central Excise 2007 (216) ELT 177 (SC); Padmini Products vs. Commissioner of Central Excise 1989 (43) ELT 195 (SC) and Commissioner of Central Excise vs. Chemphar Drugs 1989 (40) ELT 276 (SC. They have adduced the argument that the issue involves interpretation of statutory provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the fact that as per the statements given by the appellant's own officials, due to the retention of the scrap generated out of raw materials sent by M/s. Tata Motors Limited the conversion charges have been depressed and part of the job-charges have been recovered from the sale proceeds of scrap generated out of raw materials supplied by M/s. Tata Motors Limited. In the absence of any written agreement, this information was not readily available and could be unearthed by the department only after a detailed investigation and hence the department is right in invoking the extended period of time to demand the short-payment of duty. 6. We have considered the submissions. As regards the party's submission that they could have alternative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jay Yuhshin Ltd. vs. Commissioner of Central Excise, New Delhi 2000 (119) ELT 718, a larger bench of the Tribunal had held that the revenue neutral situation comes about in relation to the credit available to the assessee himself and not by way of availability of credit to the buyer of the assessee's manufactured goods. In the instant case the raw material supplier and the job-worker are totally different and distinct entities and hence the plea of revenue neutrality is prima facie not attracted. We also observe that the applicant has not pleaded any financial hardship in their application for stay of the duty and other amounts demanded. It is made clear here that the above observations are made only in the context of disposal of stay ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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