9911796707
TMI Blog2023 (4) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Section 4 of Central Excise Act, 1944. Therefore, on merit the demand is sustainable. However, the appellant have made out strong case on limitation. The appellant though working under the self-removal procedure, but they were working under Notification No.39/2001-CE. As per the said notification, the appellant had been filing their refund claim regularly in respect of all the clearances made from their factory. It is very obvious that the department before sanctioning the refund claim was under taking scrutiny of all the records such as duty paying invoice, payment through CENVAT, Payment through PLA, etc., Therefore, it can be conveniently construed that there was no suppression of fact on the part of the appellant. Extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious depots situated across India and they clear the finished goods manufactured by them to these depots from time to time. The Department observed that during the period from 2005-06 to 2009-10 (upto April, 2009). The appellant had cleared their finished goods to their depots and paid duty on the value determined by them at the factory gate. Subsequently from depot the goods were sold at higher price that was actually charged by them at their depot. The case of the department is that in case of depot clearance the price at which the goods are actually sold the duty is payable on such transaction value charged from depot in terms of Rule 7 of Central Excise Valuation Rules, 2000. Accordingly, differential duty of Rs. 52,58,133/- was short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention to pay short payment of duty, for this reason also mala fide intention is not established, hence the extended period cannot be invoked in the facts of the present case. 4. Shri Kalpesh P. Shah, Learned Assistant Commissioner (Authorized Representative) appearing on behalf of the revenue reiterates the findings of the impugned order. 5. On careful consideration of the submission made by learned AR and perusal of record. We find that as regard the dispute about valuation of the excisable goods, the appellant have not contested strongly. Moreover, we also find that there is no dispute that in case of sale through depot, the transaction value prevailing at depot at the time of sale of goods shall be the transaction value for char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ingredient such as suppression mis-statement, fraud, collusion is involved but in addition to that there should be an intent to evade payment of excise duty. In the present case since the appellant was admittedly entitled for the refund of duty demanded in the impugned order there cannot be any intention to evade payment of duty. In this circumstances, we are of the clear view that there is absolutely no mala fide intention to evade the payment of duty on the part of the appellant. Therefore, the demand for extended period is not sustainable. In the present case the SCN was issued on 09.03.2011 for covering the period of 2005-06 to April, 2009. Hence, the entire demand is time bar. Accordingly the impugned order is set aside, appeal is al ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
