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TMI Blog2019 (5) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Tribunal noted the conduct of the assessee and recorded a factual finding that there is suppression of fact with an intent to evade payment of duty. The entire matter revolves on factual issues which have been considered by the original authority, affirmed by the first appellate authority and the Tribunal. Thus, there is no question of law, much less a substantial question of law arising for consideration in this appeal. Appeal dismissed - decided against appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... ee of cost by the Oil Companies. This, according to the respondent-Department, resulted in short payment of duty during the said period. Further, for the clearances effected from September' 2000 to September' 2004, the assessee had not amortised the cost of moulds supplied free of cost by the Oil Companies. 7.According to the Department, for arriving at the transactional value, the value of the moulds supplied free of cost by the Oil Companies have to be taken into account while arriving at the assessable value for the purpose of payment of appropriate duty of excise in terms of Section 4 of the CEA, 1994 read with Rule 6 of the Central Excise (Valuation) Rules, 2000. The Department called upon the assessee to produce the Chartered Engineer's certificate in respect of number of pieces which can be manufactured out of the moulds supplied by the Oil Companies and to produce necessary documents relating to the moulds cost, vide communication dated 05.11.2004. In terms of the direction issued by the Department, the assessee produced the Chartered Engineer's certificate dated 03.12.2004. Based on the said certificate, the Department worked out the liability taking into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. Along with the show cause notice, there were two annexures which furnish the full details as to how the proposed duty liability was computed. 9.The assessee submitted their reply dated 17.02.2005 raising a preliminary objection stating that the show cause notice dated 17.01.2005, received by them on 19.01.2005, has been issued beyond the period of one year and the same is time barred in terms of Section 11A(1) of the CEA, 1944. Further, it was contended that there was no cause for invoking the proviso to Section 11A(1) of the CEA, 1944, as there is no fraud, collusion, wilful misstatement or wilful suppression. It was contended that the Deputy Commissioner admits that the allegation against the assessee emanated upon verification of the documents submitted by the assessee, hence it is not a case of suppression. Alternatively, it was contented that even in case of suppression of facts, it is for the Department to prove the same beyond doubt. 10.With regard to non-inclusion of value of amortised cost of moulds etc., supplied free of cost by the buyers, it was contented that the Oil Companies and the assessee are not related person and the sale effected is an independent sale a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng at the assessable value for the clearances of goods on payment of duty, however, they did not include the cost of such free supply of goods while arriving at the aggregate value of clearances of Rupees One Crore under SSI exemption notification. Therefore, the appellate authority held that the decisions relied on by the assessee more particularly, the decision of the Hon'ble Supreme Court in CCE vs. Chemphar Drugs and Liniments reported in 1989 (4) ELT 276 SC will not assist the case of the assessee. The same decision was pressed into service by the assessee to state that the show cause notice was barred by limitation, as it was issued after the expiry of one year of the knowledge of the Department. 14.The first appellate authority pointed out that in the case of Chemphar Drugs and Liniments (supra), the party had filed declaration of facts to the Department, but the assessee had not declared the fact that they had arrived at the aggregate value of the clearances without adding the cost of free supply of goods while availing the SSI exemption. With the above reasoning, the first appellate authority dismissed the appeal by order dated 30.03.2005. 15.The assessee challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has paid substantial portion of the differential duty liability well before the issuance of the show cause notice. Further, it is contended that the show cause notice is barred by limitation. 18.An appeal before this Court challenging the correctness of the order passed by the Tribunal can be entertained only if this Court is satisfied that there is a substantial question of law to be decided in the appeal. In other words, this Court cannot act as a third appellate authority and examine the factual details as recorded by the first appellate authority and the Tribunal, re-appreciating the same to come to a different conclusion. Thus, unless and until the assessee is able to convince the Court that there is a substantial question of law arising for consideration, the appeal cannot be entertained. In the preceding paragraphs, we have elaborately set out the factual position, the defence raised by the assessee in the response to the show cause notice, the grounds canvassed by the assessee before the first appellate authority and the Tribunal. The fact which cannot be disputed by the assessee is that they had included the amortised cost of free items while clearing the finished prod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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