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TMI Blog2022 (4) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... to March 2000 was including margin of profit in the cost of production or not and whether there was any under valuation resulting in a short payment of duty or otherwise. 2. Brief facts of case are that Appellant M/s Kumaka Industries Ltd is a Manufacturer Company engaged in manufacture of chemicals falling under Chapter 22 of the Central Excise Tariff Act, 1985. Appellant had two manufacturing units one known as Boridra Unit and another known as Distillery Unit at Ankleshwar and both units were registered with Central Excise Department and paying appropriate duty from inception of the units. Appellant as a manufacturer, maintained all statutory records including Modvat Register, RG-1, Central Excise Invoices etc. at respective factory, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty with interest and penalty. Hence, the Appellant is before this Tribunal again in second round of litigation. 3. Shri P.P. Jadeja, learned Consultant appearing on behalf of the Appellant, while reiterating all the grounds of Appeal and submissions made during hearing has stated that Appellant have defended case against them mainly on the following submissions :- a) Allegation of short payment of Central Excise Duty is bad in law, fallacious, illegal and requires to be quashed and set aside in toto. b) The entire stock transfer of Ethyl Alchohol to Sister Unit, cleared during November 1997 to March 2000 was including margin of profit in the cost of production. c) There was no under valuation on stock transfer of Ethyl Alcohol. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords including submissions filed by both the sides. We find that there is no dispute on the facts that entire stock of product "Ethyl Alcohol" manufactured in one unit was transferred to its sister unit under Invoices on payment of excise duty. The sister unit had taken credit of duty paid and Captively used the said "Ethyl Alcohol" for manufacture of their other final products which were cleared on payment of duty by the said sister unit. It is the Revenue's case that assessable value was without including the element of profit for the clearances of "Ethyl Alcohol" entirely to its sister unit, whereas Appellant has contended that assessable value was including profit element. Revenue has taken into consideration profit margin about 10 % on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing how and which data they have relied upon to formulate such value and the charges of under valuation framed against Appellant. Certificate submitted from Chartered Accountant shows that element of profit was included in assessable value in clearance of "Ethyl Alcohol" to Appellant's sister unit. Certificate of Chartered Accountant could not be brushed aside, without any other reliable contra evidence. Thus, we are of the view that Revenue has not adduced any positive, clinching, sufficient evidence to prove case on merits in facts of this case. 5.1 We also find that Appellant has objected the duty demand on various grounds including Time Limitation and Revenue Neutrality etc. It is a settled legal position that Revenue cannot invoke l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o evade payment of duty, which otherwise was available to Appellant as Cenvat Credit in sister unit and that Appellant have not suppressed assessable value with intention to evade payment of duty. There is nothing on record to show that suppression of facts or wilful misstatement were made by Appellant to evade payment of excise duty. Appellant has also filed periodical ER-1 return regularly and disclosed all the details as required. Their Invoices for clearances of "Ethyl Alcohol" at the relevant time were defaced by jurisdictional officers at the relevant time. In such circumstances, charge of suppression or willful misstatement with intention to evade payment of duty cannot be sustained against the Appellant. Hence extended period for de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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