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TMI Blog2014 (12) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant clearly shows that if the cost of production is determined in CAS-4 format on annual basis, as sought by the Department and 110% of such cost of production is adopted, the assessable value, while during certain months there would be excess payment of duty, during other months there would be short payment of duty. It is also seen that if the excess duty paid is adjusted against the short payment there is net excess duty payment. Excess payment during certain months has to be adjusted against short payment during other months. In view of this, we hold that the appellant have strong prima facie case in their favour - Following decision of CCE, Panchkula v. Yamuna Gases & Chemicals Ltd. [2011 (7) TMI 984 - CESTAT, NEW DELHI] - St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on based on the cost of iron ore fines and slimes supplied by NMDC and the cost of grinding media and another important inputs was being determined from time to time based on CAS-4 format and was being revised upward or downward whenever the price of principal raw materials changed and the duty liability was being discharged on that basis by adopting the assessable value as 110% at the cost of production. The Department was of the view that cost of production should be determined on annual basis when all the data required for the CAS-4 is available and accordingly an exercise in this regard was undertaken by the Department. On this basis, it was found that while during certain months there was excess payment of duty, during other months the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 returns showing the month wise information about the duty paid by the appellant as per the assessable value mentioned in the ER-1 returns and the duty payable according to the department and according to this statement during the period of dispute excess duty amounting to ₹ 23,56,70,002/- has been paid, as during certain months the assessable value, on which the duty was paid was much higher the assessable value determined by the department. This statement in tabular form has been allowed to be taken on record vide Miscellaneous Order No. 51502 of 2014, dated 28-4-2014. 2. Heard both the sides in respect of stay application. 3. Shri L.P. Asthana, Advocate, the learned Counsel for the appellant, pleaded that in this case the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of duty demand, interest and penalty and stay of its recovery till the disposal of the appeal. 4. Ms. Suchitra Sharma, the learned Jt. CDR, opposed the stay application by reiterating the findings of the Commissioner and pleaded that even if the appellant during certain months have paid excess duty, the same cannot be adjusted against the short payment during other months. She, therefore, pleaded that this is not the case for waiver from the requirement of pre-deposit. 5. We have considered the rival submissions from both the sides and perused the records. 6. The undisputed facts are that the entire quantity of iron ore concentrate being manufactured by the appellant was being stock transferred by them to their unit at Visakhapa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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