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TMI Blog2006 (8) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... 97 to March 1998, the Chennai Unit stock-transferred components (rear cover/cord winder assembly) for vacuum cleaners to the Hosur Unit on payment of duty based on assessable value determined by cost construction method and these goods were used captively in the manufacture of vacuum cleaners by the latter Unit. The Department, by investigations, found that the Hosur Unit had sold the said goods in the spares market at a higher rate in wholesale. On the basis of this finding, the Department took the view that, in terms of Section 4(1)(a) of the Central Excise Act, the price at which the Hosur Unit sold the goods in wholesale in the spares market should be adopted for the assessable value of the goods stock-transferred to them from the Chenn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Section 11A of the Act. It also imposed penalties on the assessee under Section 11AC and Rule 173Q. Appeal No. 1067/99 is against this decision of the Commissioner. 2.Heard both sides and considered their submissions. It was submitted by learned consultant that a major part of the stock of goods transferred from the appellant-Unit to the Hosur Unit was consumed captively in the manufacture of vacuum cleaners by the latter Unit and removed on payment of appropriate duty and that the rest of the goods received from the appellant-Unit was used by the Hosur Unit for repairing old vacuum cleaners returned for the purpose by their customers under the provisions of Rule 173H of the Central Excise Rules, 1944. The consultant also submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoose to plead anything, in this appeal, with reference to Rule 173H. The consultant, along with his written submissions produced copies of a few correspondences between his clients and the Department, but these also did not indicate that the Hosur Unit was following Rule 173H procedure. In the circumstances, we must repudiate the above arguments of the consultant based on facts not even pleaded by his clients. Contextually, we must also observe that, where a consultant or advocate ventures to alter the facts of the case pleaded by his clients, in a desperate bid to win the case, he is acting in excess of his brief. Learned consultant relied on the Tribunal's decision in Commissioner v. Ashok Leyland - 2000 (116) E.L.T. 630 in support of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered by the Commissioner. It was submitted that, as whatever differential duty paid by the appellant-Unit would be available as Modvat credit to the sister unit, it was not correct to allege that the appellant-Unit had intention to evade payment of duty. In the revenue-neutral situation, the extended period of limitation was not invocable. In this connection, learned consultant relied on the following decisions of the Tribunal: 4 Kitply Industries Ltd. v. CCE - 2003 (157) E.L.T. 110 4 PTC Industries Ltd. v. CCE - 2003 (159) E.L.T. 1046 4 Deccon Enterprises Pvt. Ltd. v. CCE - 2005 (190) E.L.T. 241 4 Indian Aluminium Company Ltd. v. CCE - 2006 (198) E.L.T. 67 He also claimed support from the Supreme Court's judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on his decision on invocability of the proviso to Section 11A(1) of the Act. However, it will not be open to learned Commissioner to impose any penalty on the assessee under Rule 173Q. Appeal No. E/1067/99 is disposed of in these terms. 4.The remaining appeal is against a demand of duty of Rs. 8,78,212/- for the period April 1998 to March 1999. It appears from the records that the original authority had demanded differential duty of over Rs. 48.00 lakhs from the assessee by finalizing provisional assessments for the period from the March 1994 to February 2000 and that the first appellate authority set aside a major part of this demand and sustained demand of duty to the extent of Rs. 8,78,212/- only. It further appears that, out of this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t permit the assessee to utilize the credit of SED paid on inputs for payment of BED on final product removed after 31-3-1994. This objection was sought to be got over by learned consultant by relying on Board's Circular No. 4/93 CX.8 dated 23-4-1993, which reads as under :- "Government of India Central Board of Excise Customs New Delhi Subject: Central Excise - Transfer of credit balance lying in RG 23A under one minor head to another minor head: Regarding. I am directed to say that the Board has examined the question of utilization of credit balance of Special Excise Duty (SED) lying unutilized in RG 23A Part II, consequent to the abolition of SED vide Notification No. 75/93, dated 28-2-1993. 2.It is observed that Rule 57A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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