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TMI Blog2019 (2) TMI 1480X X X X Extracts X X X X X X X X Extracts X X X X ..... erial supplied by M/s KFPL. The total cost of the free issue raw materials received by them including the landed cost @ 3% amounting to Rs. 78,41,977/-. However, while arriving at the assessable value of 12 machines they took into account the value of free issue material as Rs. 48,84,254/- and thereby short paid duty to the extent of Rs. 4,73,255/-. Similarly, they have also manufactured on the job-work basis 42 special purpose machine utilizing their own material as well as free issue raw material. The total assessable value of machines after considering the 3% landed cost should have been Rs. 3,40,05,686/- whereas they have considered the value of free issue material Rs. 2,40,84,130/- resulting into short payment of duty of Rs. 38,53,460/-. Consequently, show-cause notice was issued to them on 18.10.2004 proposing recovery of the short duty of Rs. 43,26,793/- along with interest and penalty. On adjudication, the demand was confirmed with interest and equivalent amount of penalty under Section 11AC of the Central Excise Act, 1944 and also penalty under Rule 173Q of the erstwhile Central Excise Rules, 1944 read with Rule 25 of the Central Excise Rules, 2002. Aggrieved by the said o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, he has submitted that invocation of Section 11AC in the present case is not called for and unwarranted inasmuch as there was no suppression of facts nor mis-declaration on the part of the appellant with intent to evade payment of duty. In support, he has referred to the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Dharamendra Textile Processors - 2008 (231) ELT 3 (SC); Union of India Vs. Rajasthan Spinning & Weaving Mills - 2009 (238) ELT 3 (SC); Commissioner of Central Excise, Chandigarh Vs. Pepsi Foods Ltd. - 2010 (260) ELT 481 (SC). Further, he has submitted that even though they have paid the amount of duty with interest before issue of notice, no benefit of proviso of Section 11AC has been extended by the authorities below. 6. In relation to the Revenue's appeal, the learned Advocate has submitted that since the differential duty was paid by M/s SPM Tools, and it does not involve suppression of facts or mis-declaration, therefore, the credit on the supplementary invoices by M/s Fuel Instrument and Engineers Pvt. Ltd. cannot be faulted with. 7. Per contra, learned AR for the Revenue has submitted that preliminary objection raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice in so far relating to units falling under Commissioner of Central Excise, Pune-II. I find that both the Commissionerates of Central Excise, i.e. Pune-I & Pune-II fall under the jurisdiction of Central Excise, Pune Zone. The Chief Commissioner is empowered to give any work for the purpose of the Act and Rules made thereunder to discharge the duties in respect of any Commissionerate. There is no rule or there is no bar against an officer performing duties in more than one Commissionerate as long as he has been authorized to do so by the competent authority. The Chief Commissioner being incharge of the entire Pune Zone which includes both the Comissionerates of Pune-I & Pune- II has not gone beyond the power bestowed upon him by Rule 3 of the Central Excise Rules, 2002. The contention that such powers were restored upon the Chief Commissioner only vide Notfn. No. 11/2007-CE (NT) dated 1.3.2007 is incorrect as vide Notfn. No. 14/2002-CE (NT) dated 8.3.2002, as amended, does not limit the powers of the Chief Commissioner to entrust the Additional Commissioner with work of more than one Commissionerate. The issue of show-cause notice therefore by the Addl. Commissioner of Pune-I Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w materials was taken less resulting into short payment of duty. Similarly, in the case of 42 machines also he has admitted in the statement dated 25.8.2004 that the landed cost of free issue material was shown less. Besides, Shri S.K. Soman, Chief Accountant of M/s Fuel Instrument & Engineers, in his statement dated 31.8.2004, admitted that the value of 42 machines has been calculated without taking consideration of total landed cost of free issue material. Analyzing these evidences, the authorities below has recorded the finding that certain parts were sent by M/s KFPL against CENVAT Credit challans, which instead of being returned after processing, used in the manufacture of 42 machines. This has been admitted in his statement dated 01.9.2004 by Shri S.S. Sail, Manager Materials and Excise of M/s KFPL. All these overwhelming evidences show that the appellant M/s SPM Tool Pvt. Ltd. were fully aware of the fact that the total landed cost of free issue material ought to be considered while determining the assessable value and the duty at the time of clearance of the goods be determined on the total value, but suppressed the correct assessable value by taking into consideration a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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