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TMI Blog2019 (11) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... 56/02-CE dt.14.11.2002. As per the said notification, whatever duty has been paid in cash over and above the Cenvat credit available as refund/self credit to the assessee. During the course of audit, the department examined cost data provided by the appellant and based on the audit para, the show cause notices were issued to the appellant alleging short payment of duty on the ground that the assessable value of the goods declared by the appellant was below the cost of manufacture. The Commissioner in the impugned order has held that the buyer is related person of the appellant, therefore, the duty is payable in terms of section 4 (1) (b) of Central Excise Act, 1944 read with Central Excise Valuation Rules, 2000. Against the said order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and provisions of Section 11B are not applicable as per Circular No.682/73/2002-CX., dt.19.12.2002. 7. He further submits that assuming for a moment that the appellant has sold the goods cost below, still the incentives obtained from the department has not been taken into account by the Commissioner. As the incentive has been available to the appellant during the period as cash refund/self-credit as the appellant is located in the State of Jammu & Kashmir and if the same is taken into account then the appellant has earned the profit on the goods sold by them. Therefore, it cannot be held that the appellant has sold the goods below the cost price. He further submits that the appellant has been granted refund/self-credit of duty paid in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ati High Court in the case of Jellalpore Tea Estate (supra). In that circumstance also, the show cause notice is not sustainable. 12. Moreover, the Commissioner in the adjudication order has treated buyer as related person as there is no allegation in the show cause notice that the appellant has sold the goods to the buyer, who is related person of the appellant. Therefore, the Commissioner has travelled beyond the scope of the show cause notice in the eyes of law. Moreover, the Revenue has taken a ground to allege relationship between the appellant and the buyer on the basis of huge amount outstanding in the balance sheet against the buyer, the same cannot be the reason the allege relationship between buyer and the appellant. Therefore, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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