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TMI Blog2016 (3) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of differential duty i.e. from September, 2007. Show cause notice issued was after almost two years from the date of payment of differential duty. In my view, even the payment of differential duty was made at the right time as the same stands payable only after finalization of cost audit report. Cause of action started from the date when the differential duty paid by the appellant, nothing has prevented the department to issue a show cause notice within one year from the date of payment of excise duty. There is no suppression of fact, fraud and mis-statement etc on the part of the appellant therefore demand is patently time bar. Therefore set aside the impugned order on limitation and allow the appeal of the appellant. - Decided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty of ₹ 1,41,028/- BED and ₹ 4,231/- Ed. Cess against short paid differential duty BED ₹ 21,65.393/- and Education Cess ₹ 48,860/- and paid remaining differential duty BED ₹ 20,24,365/- Ed. Cess ₹ 40,487/- and Secondary Higher Education Cess ₹ 4,142/-. The appellant paid differential duty in the month of October, 2007 after the short payment had been pointed out in the departmental audit. On scrutiny of the record, it was alleged in the show cause notice that as there was no provision of suo moto availement of credit of duty, appellant ought to have made an application to the competent authority for refund of payment of duty as per the provision of Section 11B of Central Excise, Act 1944 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2006-07 on the basis of cost audit report. However, on the basis of audit observations appellant calculated the duty, adjusted the excess paid duty and net differential duty of ₹ 20,68,994/- was paid and intimated to the department vide letter dated 22/9/2007. The show cause notice for the amount of excess duty paid which was adjusted against short paid duty, was issued on 18/9/2009 i.e. almost after two years from the payment of duty therefore demand raised in the show cause notice is time bar as no suppression of facts or any malafide is proved against the appellant. She has relied on following judgments: (a) Indian Oil Corporation Ltd. vs. Commissioner of C.Ex Haldia [2010 (262) ELT 639 (Tri.Kolkata)] (b) Commissioner of C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 398 (Tri. Del.)] 5. On careful consideration of submissions made by both sides and perusal of records, I find that the case can be decided on the issue of limitation itself therefore I am not addressing issue on merit. The appellant well in advance informed the department vide their letter dated 28/8/2006 for their option of provisionally assessment as per Rule 7 of Central Excise Rules, 2002. Since appellant was paying duty under Rule 8 which is on cost construction method, cost arrived on the basis of cost audit report. In such case only provisional price can be determined and final price on the basis of actual data of over heads can be arrived at in next year only after finalization of accounts of particular financial year. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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