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TMI Blog2017 (5) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to mention the fact that they were adopting the price listed in their website and the fact came to the notice only when the Departmental officers visited the factory and carried out investigations - the demand does not merit setting aside on the ground of time bar. Penalty - Held that: - The controversy in the present case is pertaining to the period immediately after commencement of manufacture by the appellant in their Bangalore factory. Consequently, we are of the view that there is no justification for imposition of penalty on the appellant and hence the same is set aside. The demand is upheld to the extent of ₹ 22,61,058/-. The balance of demand amounting to ₹ 14,61,527/- is set aside. The amount of demand already paid by the appellant is liable to be appropriated - Interest will be liable to be paid at the applicable rate - Penalty imposed is set aside - appeal allowed - decided partly in favor of assessee. - E/98/2005-DB - Final Order No. 20605/2017 - Dated:- 3-5-2017 - Shri S.S Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Shri G. Shivadass, Advocate for the appellant Shri Mohd. Yousaf, Addl. Commissioner(AR) for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it was required to be adjusted to the demands in terms of the judgments cited by them is required to be reconsidered. v. The aspect of the appellants not having intention to evade duty in light of the documents relied is a further point for reconsideration. vi. The findings of Commissioner that the documents given for consideration is only within the jurisdiction and competence of the JDC is not a correct finding. It was for the Commissioner to have examined the issue in the light of the law laid down in the Tribunal judgments and circular and should have examined the issue of adjustments of duty in the light of the judgments. 2. The impugned order dt. 01/11/2004 was passed by the adjudicating authority in the de novo proceedings in which he once again confirmed the demand of the differential duty to the extent of ₹ 37,22,585/- along with an order to appropriate an amount of ₹ 16,93,453/- already paid by the appellant. In addition to ordering payment of interest, the adjudicating authority also imposed penalty of ₹ 20,29,150/- under Section 11AC of the Central Excise Act. Aggrieved by the impugned order, the present appeal has been filed. 3. Wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prayed that such demands would be liable to be set aside. The learned counsel for the appellant also re-emphasised their claim that before demanding differential duty in cases where the depot prices are higher, they should also be permitted to adjust the cases where duty paid in excess as has been held by the Tribunal repeatedly in many cases. He also made the plea that the entire demand will be hit by limitation as the show-cause notice dt. 09/04/2002 has been issued much beyond the normal time limit of 6 months from the period of dispute i.e. 21/04/1998 to 27/07/1999. 6. The learned AR supported the impugned order. It is his contention that the Rule 4 of the Central Excise (Valuation) Rules, 1975 read with the CBEC Circular dt. 14/10/1996 clearly lays down that the assessable value in the case of depot clearances is required to be determined as the price prevalent at the depot at the time nearest to the time of removal of the goods from the factory. As has been held by the learned Commissioner in the impugned order (Para 15), the price prevalent on a date close to the date of clearance, even if after the date of clearance, can be adopted in terms of Rule 4 of the Valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. Amounts paid in excess should be allowed to be adjusted against the demand without filing separate claim for refund. The submission of the appellant is that no allegation of suppression of fact can be made against the appellant since the appellant had provided the details of stock transfer invoices with reference to those depot invoices where the refund was admissible. Accordingly, they have argued that nothing stopped the Department from asking for the rest of the stock transfer invoices where duty might have been paid short with reference to depot invoices. They have also submitted that they have been filing price declarations as required under Rule 173C of the Central Excise Rules, 1944. The learned Commissioner in the impugned order (para 17) has discussed both the above contentions of the appellant. He has given the finding that while submitting the details of depot invoices where refund was admissible, they have concealed the details of clearances in respect of which depot price sale was higher than the stock transfer value. He has further held that the appellant has failed to mention the fact that they were adopting the price listed in their website and the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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