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TMI Blog2015 (12) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... under proviso to section 11A(1) is not invokable, as during the period of dispute not only there was conflicting judgments of the Tribunal on the issues, till this issue was resolved by the Larger Bench of the Tribunal in the case of Ispat Industries Limited (supra), even the Board s Circular dated 30/06/2000 clarified that in the cases where the goods manufactured by an assessee are cleared for captive use as well as are sold to independent buyers, in respect of the goods cleared for the captive use, the value would be determined under Rule 8 of the Central Excise Valuation Rules, 2000 Extended period of limitation - entire duty demand for the period from September, 2000 to March, 2003 raised vide show cause notice dated 4/10/2005 is ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the sale price to independent buyers. Another objection of the department is that in respect of receipt of capital goods the appellant had taken capital goods CENVAT Credit of the entire amount on excise duty at a time, while in terms of the provisions of the CENVAT Credit Rules, 1944, at the time of receipt of the capital goods, the assessee was entitled to avail the CENVAT Credit of only 50 % of the Central Excise Duty and the balance CENVAT Credit could be taken only in the next financial year. Since by the time, this irregularity was detected, the appellant had become entitled for the balance 50 % of the capital goods CENVAT Credit also, the Department is of the view that interest on the wrongly taken CENVAT Credit would be payable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany was being cleared for captive consumption to their hosiery unit within the same factory; that the appellant during the period of dispute were also purchasing yarn from outside for manufacture of knitted fabrics, that there was common storage of the yarn manufactured within the factory for captive use and the yarn purchased from outside; that it is out of the such common stock that sometimes when there was excess stock, certain quantity of the yarn had been sold; that, therefore, it cannot be said that quantity of yarn sold was that which has been manufactured within the within in the factory and as such the sale price of that yarn cannot be adopted for valutation of yarn cleared for use within the factory; that during the period of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 or of the Rules made thereunder would not sustain and hence, longer limitation period under proviso to section 11A(1) would not be applicable; that in this regard he relies upon the Apex Court s judgment in the case of Continental Foundation Joint Venture Vs. CCE-Chandigarh reported in 2007 (216) ELT 177 SC and that in view of this, the impugned order confirming the duty demand of ₹ 47,61,675/- against the appellant by involving provision of Section 11A (1) and imposed equivalent penalty under section 11AC is not sustainable. 7. Shri Yashpal Sharma, the learned DR, defended the impugned order by reiterating the findings of the Commissioner and pleaded that while yarn manufactured in the spinning section was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Valuation Rules, 2000, that is, on 115% per cent of the cost of production. There is no dispute that yarn manufactured in the spinning section was being transferred to the hosiery for captive use and hosiery section was also purchasing certain quantity of yarn from outside. There is also no dispute that substantial quantity of yarn was being sold from Hosiery section to independent buyers. The appellants contention is that there was common storage in the hosiery section of the yarn manufactured within the factory and the yarn purchased from outside and, therefore, it cannot be said as to whether the yarn which was sold was that which had been manufactured within the factory. Be that as it may, we are of the view that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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