9911796707
TMI Blog2024 (5) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... o the merits of the case. It is found that as per the department the issue on merit is that the appellant was supposed to pay the excise duty on the goods cleared from their clinker unit to the grinding unit not on the cost construction method i.e. 110% of cost of manufacturing but on the transaction value of the same goods sold to the independent buyers - since there is no gain or loss to the appellant, the situation is revenue neutral, hence, malafide intention cannot be attributed to the appellant. Moreover, though during the relevant period i.e. March, 2011 to November,2013 both the units i.e. clinker and grinding unit were separately registered but from May, 2016 both the clinker unit and grinding unit have been granted common Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation, hence, not sustainable. The impugned order is set aside on the ground of limitation - Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... red details as per the statutory form. Further, the appellants were also audited from time to time. No objection was raised by the department on the manner of valuation of goods cleared to their grinding unit at any point of time during these audit , even during the audit conducted after amendment to Rule 8 of Valuation Rules with effect from 01.12.2013.the appellant submits that it is a settled law that extended period of limitation cannot be invoked when the appellants have been audited from time to time and monthly returns have been filed regularly by the appellant. Reliance was placed on the following judgments:- * CCE, Bangalore vs. Pragathi Concrete Products (P) Ltd - 2015 (322) ELT 819 (SC) * Apex Electricals Pvt Ltd vs. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. We find that as per the department the issue on merit is that the appellant was supposed to pay the excise duty on the goods cleared from their clinker unit to the grinding unit not on the cost construction method i.e. 110% of cost of manufacturing but on the transaction value of the same goods sold to the independent buyers. The appellant submitted that the goods in question i.e. clinker manufactured and supplied to their own grinding unit where the same is used in the manufacture of cement and the cement so manufactured is cleared on payment of duty, therefore, whatever duty paid on the clinker the same is available as cenvat credit to the clinker unit. Therefore, since there is no gain or loss to the appellant, the situation is reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri. Mum) Maintained by the Hon'ble Supreme Court in 2016 (334) ELT A123 4.3 In view of the above this is a clear case of revenue neutrality, therefore, suppression of facts or any malafide intention with intent to evade the payment of duty cannot be attributed to the appellant, consequently the demand is not sustainable on limitation. Moreover, the period involved is March, 2011 to November,2013 for which the show cause notice was issued on 18.03.2016, thus, the entire demand is beyond the normal period of limitation. We find that the appellant have been filing their monthly return from time to time declaring all the details in the returns and the fact is on record that the appellants are clearing clinker to their own grinding unit, val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valuation has to be done on 115% of the cost of manufacture of the goods even if identical or comparable goods are manufactured or sold by the same assessee and this circular was further reiterated vide CBEC's Circular No. 354/81/2000-TRU dated 30.06.2000. Therefore, the appellant has acted upon the above circular, for this reason also no malafide can be attributed to the appellant. 4.6 On the identical issue on merit the Hon'ble Allahabad High Court in the case of CCE vs. Monsanto Manufacturer Pvt Ltd- 2014 (35)STR 177 (All.) has held that once the court has come to the conclusion that the extended period of limitation could not have been invoked there would be no occasion to enquire merit of the issue. Therefore, we are of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
