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TMI Blog2018 (7) TMI 1937X X X X Extracts X X X X X X X X Extracts X X X X ..... merging into the Revenue Neutral situation. In such a case there is no scope of payment of any imposition of any penalty under Section 11AC of the Act or interest under 11AB of the Act. Appeal allowed - decided in favor of appellant. - Excise Appeal No. E/287/2007 & 482/2009 - Final Order No. FO/A/77186-77187/2018 - Dated:- 11-7-2018 - Shri P.K. Choudhary, Member (Judicial) And Shri Bijay Kumar, Member (Technical) Shri H.S. Abedim, AC(AR) Shri A.K. Bisbas, Suprt.(AR), for the Appellant (s) Shri S. Chatopadhy, SR, Advocate, Shri G.K. Mundhra for the Respondent (s) ORDER Per Shri Bijay Kumar 1. Both these appeals are being disposed of by this common order as the issue involved in these appeals are identical. 2. This appeal is filed by the Revenue against the Order-in-Original No. 04-JSRCES-APL/2007 dated 28/03/2007, the appeal is filed on the following grounds; That the Commissioner (Appeal) has failed to appreciated that in the present case the imposition of penalty is quite distinguishable from Rashtriya Ispat Nigam s case. Firstly, it is said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material fact and the value of the excisable goods with intend to evade the payment of duty and accordingly invoked the extended period for limitation under Section 11 A of the Act, and rightly adjudged equivalent penalty under Section 11 AC of the Act and imposed interest also under Section 11AB of the Act. Reliance was also placed on the decision of Hon ble High Court of Madhya Pradesh in case of M/s Shah Machine Tools Pvt. Ltd, vs. Commissioner of Central Excise, [2006 (203) ELT, 15 (MP.)] wherein it is held that once it is noticed that the duty as required was not paid at the time of clearing the goods, and was they paid later point of time and in such case the default occurred, thereby attracting Section 11 AC ibid. Reliance was also placed in the case of Commissioner of Central Excise New Delhi. Vs. Mechino Montel, reported in 2006(202) ELT 398(P H). 6. Further the Commissioner (Appeal) erred in holding the interest is no leviable in the instant case by placing reliance in the case of Insulator and Electrical Company vs. CCE, Bhopal 2006[(2002) ELT 734 (TRI-DEL)] 7. In view of the above, it was said that impugned order is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries Pvt. Ltd. CCE reported in 2007(209) ELT 185 (TRI-LB)] Rule 8 of the CE Valuation Rule did not have any application. Further reliance was placed on the decision of Steel Complex Ltd. vs. CCE 2004(171) ELT 255(Tri-Bang) Commissioner vs. Steel Complex Ltd. 2015(321) ELT A 138(S.C.). In this case while dismissing the appeal, by the Department the Hon ble Supreme Court has held; After hearing learned counsel for the parties, we are of the opinion that Rule8 of the Central Excise Rule,2000, which was prevailing at that time will have no application in the present case, where the goods are only partly sold under ex-factory basis and partly cleared for capitation consumption. We are, therefore, not inclined to interfere, on this ground alone, with the order passed by the Customs, Excise Service Tax Appellate Tribunal. The appeals are, therefore, dismissed. 11. The respondent paid the differential duty which was legally payable and the objection raised by the Department will result into Revenue Neutral situation. Such payment was made by the appellant in order to avoid dispute and litigation which did not mean that assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that they have not correctly discharge the duty on the inter-unit transfer of the goods to their various sister units. Under the provisions of Act, 1944 for the period from April, 2003 to February, 2008. 14. The fact of the case is that the appellant have got the two factories at Jamshedpur Usha Alloys Steel Division (first factory) where they manufacture steel billets and steel wire rods of the different verities and the Straight Bar and Wire Mill Division (second factory) where the appellant manufacture Straight Bar and Wires. For the manufacture of final product by the second factory, steel billets and wire rods manufactured at the appellant s first factory are the inputs. After 1st July 2000, the dispute arose between the Assessee and the Central Excise Authority about the system of determination of assessable value of inter-unit transfers. The Appellants were of the view that Rule 8 of the Central Excise Valuation (determination of price of excisable goods) Rules 2000 (in short valuation Rule) can apply on the entire production being used captively and not in case were part of the production being used a part of the production being clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er that it is immaterial as to whether the transaction value of the finished goods in such cases was lower or higher to the market prices 15. The Commissioner (Appeal) has erred in totally by ignoring the aforementioned judgment which was in favour of the appellant. No reason has been given by the Adjudicating Authority to hold the valuation of the said inter unit transfer was required to be done under Rule 8 of the Valuation Rules the appellant had paid the differential duty, which was not legally payable on audit, objection raised by the Department in view of the revenue neutral situation. Such payment made in order to avoid dispute and litigation, and did not mean that there was any short levy or short payment. In the circumstances, it was submitted that the instant case there was absolutely no necessity or justification of invoking the proviso of Section 11 A or the provision of Section 11 AC of the Act for confirmation of demand imposition of penalty. Similarly, there was no need for payment of any interest as the demand of duty itself is not sustainable. The reliance was placed on the following case laws; (i) C.C.E. vs. Subray Catal C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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