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TMI Blog2013 (10) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... a Cost Accountant appointed by the department and in the light of the Cost Accountant’s certificate regarding the cost of production of the products, in question, during each financial year, the matter must be re-adjudicated. Limitation - Appellant submitted the Chartered Accountant certificate for the period from 1-7-2000 to December 2002 only on 27-3-2003 and that while after 1-7-2000 on the introduction of new Valuation Rules, the appellant were supposed to submit costing certificate from 1-7-2000 immediately, they in spite of repeated requests made by the Range Officer submitted the same only on 27-3-2003 claiming a much lower cost of production, than that certified in the certificate dated 7-9-2002 – Held that:- Commissioner’s order is silent on the appellant’s claim that they had informed the department from time to time during the period of dispute regarding the assessable value of sulphonic acid done Surf Excel bulk detergent along with the Chartered Accountant’s certificate, for correct determination of the question of limitation and the linked question of imposition of penalty under Section 11AC, the matter remanded for de novo adjudication - Impugned order is set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has alleged that during this period, the appellant have short paid the duty to the tune of Rs. 6,00,52,995/-. Accordingly, a show cause notice dated 2-8-2005 issued to the appellant invoking proviso to Section 11A(1) of Central Excise Act, 1944 for recovery of the above-mentioned duty alleged to have been short paid during the period from July 2000 to December 2002 along with interest thereon under Section 11AB of the Central Excise Act and also for imposition of penalty on the appellant under Section 11AC ibid. 1.2 The above show cause notice was adjudicated by the Commissioner vide order-in-original No. 28/Commr/Cex/2005 dated 30th November 2005 by which the Commissioner upheld the allegation made against the appellant in the show cause notice and confirmed the above-mentioned duty demand along with interest and beside this, also imposed penalty of equal amount on the appellant company under Section 11AB of the Central Excise Act. In this order, the Commissioner held that during the period of dispute, the appellant had not determined the cost of production and, hence, the assessable value, correctly with intent to evade the payment of duty and that the certificates of Chart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communicated to the department alongwith the Chartered Accountant s certificate and, hence, the appellant cannot be accused of suppressing any relevant information, that in any case, the entire duty paid by the appellant unit was available as Cenvat credit to their sister concern and, hence, there could not be any intention on the part of the appellant unit to evade the payment of duty and for this reason also, longer limitation period is not invokable, that in this regard the reliance is placed on the judgment of Larger Bench of the Tribunal in the case of Jay Yuhshin Ltd. v. CCE, New Delhi reported in 2000 (119) E.L.T. 718 (Tribunal-LB), that when the longer limitation period under proviso to Section 11AB is not invokable there is no question of imposition of penalty on the appellant company under Section 11AC and that in view of the above submissions, the impugned order is not sustainable. 4. Shri Davinder Singh, the learned Jt. CDR, defended the impugned order by reiterating the findings of the Commissioner in it and pleaded that during the period of dispute, the appellant have not determined the cost of production in terms of CAS-4 standard and, thus, have short paid the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the costing has not been done properly, has not been pointed the exact objection of the department in respect of the same. In our view, therefore the matter has to be remanded for de novo adjudication after determining the cost of production of both the products during each financial year during the period of dispute strictly in terms of CAS-4 standard and in that format by a Cost Accountant appointed by the department and in the light of the Cost Accountant s certificate regarding the cost of production of the products, in question, during each financial year, the matter must be re-adjudicated. 8. As regards, the question of limitation, while the appellant pleads that throughout during the period from April 2000 to March 2003 they had submitted price lists declaring the price of the Surf Excel bulk detergent (bulk) as well as of sulphonic acid accompanied by the Chartered Accountant s certificates - accord to the Commissioner as observed by him in para 17 of the impugned order, the appellant submitted the Chartered Accountant certificate for the period from 1-7-2000 to December 2002 only on 27-3-2003 and that while after 1-7-2000 on the introduction of new Valuation Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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