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TMI Blog2017 (12) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... pplying the principles as laid down in CAS-4 computed the assessable value according to which a total differential duty of 1,55,38,292/- was calculated. In the first adjudication, the demand was confirmed. The appellant challenged the order in original before the Tribunal. This Tribunal while hearing the matter for stay dispose of the appeal itself, vide Order no.A/1354/WZB/06 dated 12.07.2006 with a direction that the Jurisdictional Commissioner to decide the matter on the CAS-4 certificate after extending the reasonable opportunity to the appellant on being heard in their defence. After that case was taken up for denovo adjudication wherein the demand stood reduced to 18,36,911/- for the period Sept 2002 to March 2005. Penalties and interest were also confirmed. The adjudicating authority in the denovo adjudication observed that certain elements of overheads such as outside job charges, conversion cost of stator plate, administrative overhead related to production, the charges etc. related to production of stator assembly were not considered by the appellants and on adding the above cost, the differential duty demand was confirmed. Being aggrieved by the denovo order, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit is taken as cenvat credit by their sister concern who is recipient of the goods. Therefore any differential duty arises in this case was also available as cenvat credit to their recipient unit. This is clear case of revenue neutrality. For arriving at the revenue neutrality it is necessary to see whether the recipient unit is discharging the excise duty from the PLA or cash. In this regard, when asked by the bench, Ld. Counsel submitted the said details vide letter dated 05.10.2003. On going through the details of duty payment particulars, we find that the consignee unit of the appellant has paid excise duty not only from CENVAT but also from PLA which is more than the excise duty demand involved in the present case. On this fact revenue neutrality is established. This has been settled by various judgments including the judgment of the Hon'ble Supreme Court that where there is revenue neutrality demand would not sustain. In the case of Larger Bench decision of the Tribunal in Jay Yuhshin Ltd. (supra), it observed as under:- "11.We have considered the rival submissions and have perused the case law. We find that in five cases in the list of cases referred to in Para 9 ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance of excisable goods on short payment of duty had taken place. The fact that the differential duty was subsequently debited (albeit voluntarily) by the assessee before the issue of SCN will not debar the issuance of SCN in relation to the short payment occurring on the relevant date. Further, to the extent the appellants had stated in their price list declaration that no extra consideration had been received from the suppliers of the components despite the known fact that the said components were received free of cost, the allegation of suppression of facts in terms of the proviso to Section 11A(1) has to be held to have been established. The fact that there was a huge duty differential of an amount of over Rs. 55 lakhs between the duty paid by the appellants and debited by them later, is a strong circumstance which supports the inference of their intention to evade duty as the said amount has undeniably resulted in a financial gain for the appellants during the period and this financial gain flowed directly from the non-inclusion of the cost of the components in the assessable value. We are therefore satisfied that there will be no illegality in invoking the extended period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Empire Industries Ltd. v. UOI - 1985 (20) E.L.T. 179 (S.C.) and held that the assessee would be entitled to Modvat credit if duty is paid at each stage of the manufacturing and, therefore, the entire exercise would be revenue neutral. 3. Admittedly, against the decision of the Tribunal in Indian Rayon and Industries Ltd. (supra), Revenue did not file any appeal and accepted the decision and in our view rightly so. Admittedly, assessee has paid duty at the final stage. If assessee has to pay the excise duty at each and every stage of manufacturing, it would be entitled to Modvat credit and the whole exercise would be revenue neutral. 4. The Appeal is dismissed accordingly. No costs. This Tribunal in the case of Trinity Dic Forgers Ltd. (supra) held as under:- "4. We have carefully considered the submission of both sides. We find that the Revenue has solely relied upon the statement of the Director for holding that the goods cleared by the appellant are fully finished goods and no further process was required. However, the record maintained by the appellant i.e. route card clearly shows that the process such as drilling, reeling, broaching, etc., were not carried ..... X X X X Extracts X X X X X X X X Extracts X X X X
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