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TMI Blog2008 (7) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... ory are cleared to these depots/consignment agents from where the same are sold subsequently to independent wholesale buyers. Majority of the sales from the depots/consignment agents are sales of steel wire rods in respect of which the prices vary on day to day basis and even on a single day the prices vary depending on the market conditions. 2. Section 4 of the Central Excise Act, 1944 was amended w.e.f. 28-9-1996. By virtue of this amendment depots and premises of consignment agents were included in the definition of the expression "place of removal". There is no dispute regarding the legal provision that after the amendment, Assessable Value of the goods initially removed to the depots and premises of consignment agents and subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a result of paying duty on each consignment sold from the depots/premises of the consignment agents based on the invoice value, the Appellants have actually paid more duty than they are required legally to pay on the basis of depot price prevailing at the time of removal of the goods from the factory. According to Shri Bagaria, the learned Sr. Advocate, the assessments have also been finalized accepting such higher duty paid by the Appellants and the Appellants are not seeking any refund considering the fact that the amount is insignificant compared to the total duty being paid by the Appellants every year. 4. Shri Bagaria states that under the circumstances, the belated show cause notice issued by the Directorate of Central Excise Intel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctuations in the price during the day, the Department should have gone by the price prevailing at the time of removal and not the highest value prevailing on the day of removal. Secondly, even according to the Department the total duty liability of the appellants which has been calculated taking the highest value prevailing at the depot on the day of removal from the factory is less than the total duty the Appellants have paid as indicated in columns 5 and 6 of Annexure 6. Moreover, when the field officials have accepted the payment of duty on the basis of invoice value of each consignment cleared from the depot and the Directorate of Central Excise Intelligence wants to make a re-assessment, they must take into account the entire duty amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also been confirmed in the impugned order under Section 11D of the 1944 Act. Shri Bagaria, learned Sr. Advocate states that this demand is also time barred as the notice was issued on 4-8-2003 for the period ending June, 2000. Moreover, he states that the Appellants have not recovered any amount representing excise duty in excess of what they have paid to the Department warranting application of Section 11D. He states further that the Department has not also adduced any evidence in this regard. On the contrary, the Appellants have submitted all the connected documents and invoices which the adjudicating Commissioner has not examined before confirming the demand of Rs. 7,41,322/-. 6. After hearing the arguments made from both the sides in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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