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TMI Blog2016 (8) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had undervalued the product namely, SKO (PDS) cleared to Oil Marketing Companies resulting into short payment of duty. Consequently, a show cause notice was issued to the appellant on 12.03.2007 invoking extended period of limitation demanding duty to the tune of Rs. 5,10,73,885/-. On adjudication, even though the Ld. Commissioner has held that assessable value determined by the appellant was incorrect as they failed to adopt the transaction value at which the goods were sold to OMCs, but dropped the demand against the Appellant on the ground of limitation. Aggrieved by the said order on merit, the assessee filed the present appeal challenging the principle of determination of assessable value, whereas, the Revenue came up before this Tribunal against dropping of demand and penalty by the adjudicating authority on the ground of time bar. Both the Appeals are taken up together for disposal. 3. Ld. Advocates Shri T.C. Nair and Ms.M.M. Patil for the appellant-assessee submitted that even though the decision of this Tribunal in the case of Oil and Natural Gas Corporation Limited vs. CCE, Raigad 015-TIOL-1960-CESTAT-MUM-LB ruled that the transaction value at which the LPG h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 358 (Tri. Mum.) and Housing & Development Corporation Limited (HUDCO) vs. Commissioner of Service Tax, Ahmedabad 2012 (26) STR 531 (Tri. Ahmd.). 6. In response, the ld. Advocate for the assesse has submitted that in the excise invoices two prices had been invariably reflected, namely, the price at which the goods was sold to OMCs and the price at which the goods were ultimately sold by the OMCs to the buyers. For the purpose of determination of value and discharge of duty the later price was adopted by them. It is his contention that on this very premise the show cause notice was issued to them. To support his argument the ld. Advocate read out the relevant portion of the show cause notice dealing with the statement of Shri Kaushik R. Vyas, Senior Finance Manager along with sample invoices. It is his contention that since all the facts were within the knowledge of the department, and the determination of assessable value of petroleum products had been in dispute between the appellant and the department for quite a long period, therefore, extended period of limitation cannot be invoked. In support, he has referred to the decisions of the Hon'ble Supreme Court in the case of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessable value fixed by the Ministry of Petroleum & Natural Gas and not on the transaction value; that the department could not be unaware of the two prices the assessable value and Refinery Transfer Price being mentioned in the Central Excise Invoices and the duty being calculated and paid by the Assessee on the basis of the assessable value as throughout during the period of Show cause notice there had been periodical Central Excise audits by the Internal Audit parties of the Central Excise department and of CERA in course of which the invoices had been examined and no objections had been raised; and that the Assessee was a Public Sector Undertaking. 10. On going through the records in this case I find that in his case it is true that the Assessee were paying duty on the basis of assessable value which was being communicated to them by the Ministry of Petroleum & Natural Gas. It is a different matter that the practice being followed by the Assessee was not in conformity with the provisions of Section-4 of Central Excise Act, 1944 but the fact remains that this practice was being followed as per the directions of the Ministry of Petroleum & Natural Gas under which the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal came to the conclusion that the facts referred to hereinbefore do not warrant any inference of fraud. The assessee declared the goods on the basis of their belief of the interpretation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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