9911796707
TMI Blog2007 (7) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... (T)]. - 1. The appellant is a manufacturer of various varieties of textile yarn, which are liable to Excise duty. It is also to be noted here that Manufacture has an extended meaning in the context of Central Excise duty in as much as processes carried out on already manufactured yarn also attract Excise duty. This is because of the deeming provision that specified processes themselves will be treated as manufacturing processes. 2. The appellant was also required under Rule 173-B to file declaration relating to goods manufactured. This declaration indicated, inter alia , the description of the goods, their Excise classification and the rate of duty attracted. The appellant had been filing such declarations. For e.g. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evy of about Rs. 2.12 crores in regard to 'bulked' yarn. (We a informed that the process of 'bulking' is one of passing yarn through hot water). The allegation was that such yarn is not entitled to ex emption under Notification No. 5/99 and succeeding notifications. This notice was adjudicated on 23-12-2003. The finding was that, upon allowing Modvat credit due, the appellant had paid excess duty of about Rs.11 lacs as against the short levy of Rs. 2.12 crores alleged in the show cause notice. 4. Subsequent to the aforesaid adjudication show cause notice dated 29-3-2004 was issued alleging a short levy of over Rs. 11 crores for the period March 1999 to April 2002 in respect of bulked yarn. The appellant contested the demand on gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asized that the duty demand of about Rs. 1.8 crores is merely because the Revenue has incorrectly adopted the sale price of the yarn in question for the purpose of valuation instead of adopting the net price (rum duty) for the purpose of computation of duty, as done in the earlier adjudication. The learned Counsel would further submit that the Modvat credit computation made in the order is contrary to the factual position certified by the accountant 6. The learned Counsel would emphasize that a second notice cannot be issued by Revenue by invoking the proviso (extended period) under Section 11A, in as much as facts were already known at the time of issue of the first notice. Reliance in this connection is being placed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the noticee misdeclared actual description of goods (Daffodil Yarn) in their monthly RT-12/ER-1 Returns and thus willfully suppressed the material facts from the department by not giving the ex goods is act/correct description of goods in their monthly RT-12 return. The noticee contravened the provisions of Rules 9, 52, 52A 54 of the erstwhile Central Excise Rule 1944/ Rules 4, 6, 8, 11 and 12 of Central Excise Rules 2001/2002 with intent to evade payment of duty. Therefore, the extended period of limitation is invocable in this case. On the above reasoning, penalty under Section 11AC of the Act is also imposable on the notice". 9. We have already noted that the appellant had specifically mentioned 'bulking' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts. 11. We have already noted that the first proceeding ended in a finding of fact that there was only excess payment of duty as against the alleged short levy. In the present proceeding also, the amount confirmed under the impugned order is a small part of the amount alleged in the notice. Most of that amount also is not due if the assessment is carried out on the correct value i.e. net of duty already paid. It is well settled that in all cases of short levy, valuation is to be made on cum-duty basis. It was done so in the adjudication order dated 23-12-2003 also. The assessee had raised this aspect in the adjudication proceedings also; but no valid reason, for not accepting that plea is mentioned in the order. Thus, the v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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