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TMI Blog2015 (5) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... officers and the valuation of the finished goods was accepted by them as there is no adverse audit report. Appellant had been availing the benefit of ratio laid down by the Tribunal in the case of IFGL Refractories Ltd. which indicated that such reduction of the price to the customers who invalidated the licence cannot be called as additional consideration. Show-cause notice which invokes the extended period and the order-in-original that conforms the demand on the ground that there was a suppression and mis-statement of the facts is unsustainable, as there is nothing on record to indicate that there was suppression or willful mis-statement on the part of the appellant with intention to evade duty. Appellant was taking the benefit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ELT 239 (Tri-Kolkata) was holding fort, on which reliance was placed by the appellant during the material period. On the appeal, the said judgment and order of the Tribunal was upturned by the Hon'ble Apex Court on 09.08.2005. Lower authorities directed the appellant to pay the differential dues immediately by a letter dated 04.01.2006. Appellant was issued a show-cause notice dated 13.4.2007 demanding differential duty based upon the allegation of under-valuation and also invoking extended period. The adjudicating authority after following the due process of law confirmed the demands along with interest and also imposed penalty. 3. Learned Sr. Advocate appearing on behalf of the appellant took us through the records of the case file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector of Central Excise - 1995 (75) ELT 721 (S.C.)for the proposition that when the department was aware of the clearances made by the assessee it cannot be considered as mis-statement or suppression and more so willful intent to evade duty. It is his submission that the entire demand set aside as the show-cause notice wrongly issued by invoking extended period. 4. Learned D.R. on the other hand would submit that the appellant had been taking the benefit of judgement of the Tribunal in the case of IFGL Refractories Ltd. (supra) and did not pay the differential duty on the depressed value of the same grade and quality of the products supplied to the customers who invalidated the advance licence. He would submit that the appellant was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the said judgement was delivered on 09.08.2005 and reported at 2005 (186) E.L.T. 529 (SC). 6.2 In our consideration view and on perusal of the records, we find the show-cause notice dated 13.04.2007 invoking extended period seems to be erroneous, in as much as the invoices and the documents which are produced before us indicate that the appellant was indicating on the invoices that the clearances made by them were in fulfilment of export obligations on invalidating the licence in their favour. We have also noted that the appellant's records were audited by the departmental officers and the valuation of the finished goods was accepted by them as there is no adverse audit report. We find that the appellant had been availing the benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Per: P K Jain: I have gone through the order of the learned Brother. While I agree with the conclusion drawn however, I would like to add that consequent to the Hon'ble Supreme Court's decision in the case of IFGL Refractories Ltd. (supra), Revenue has written a letter to the appellant on 04.01.2006 directing him to workout the correct transactional value in pursuance of the Hon'ble Supreme Court order and thereafter compute the differential duty to be paid and make the payment and inform the revenue accordingly. The copy of the said letter is as under:- Though the learned Sr. Advocate for the appellant stated that they would have submitted the details as requested in the said letter however, during the hearing he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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