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TMI Blog2024 (8) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department was of the opinion that the appellant has paid excess duty on the value of additional protective packing in order to avail the rebate of the duty paid in a wrongful manner and the wrongfully claimed rebate is liable to be recovered; accordingly, a Show Cause Notice dated 13.07.2011 has been issued to the appellants to recover rebate of Rs.2,18,21,420/- from the appellants along with interest and penalty; the Show Cause Notice also sought to impose penalties on Shri Sheel Kapoor, CFO-Cum Director and Shri Mahesh Nagpal, DGM of the appellants; the proposals made in the Show Cause Notice were confirmed vide impugned order dated 09.07.2013. Hence, these three appeals by the appellant, their CFO and the DGM. 2. Shri Jitin Singhal, learned Counsel for the appellants, submits that Section 4(3) (d) of Central Excise Act, 1944 defines the transaction value to be the price actually paid or payable; accordingly, the transaction value will be the price actually paid for the goods; whatever comes to the seller from the buyer by the reason of sale of goods will be covered under the transaction value; the overseas buyer issues a purchase order and the appellants have paid Excise Dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty evidenced by the Department; the appellants were regular manufacturers and exporters; therefore, in the facts and circumstances of the cases, extended period cannot be invoked. He also submits that for the very same reasons, penalty cannot be imposed either on the appellant or their CFO and DGM. 7. Shri Aneesh Dewan, assisted by Shri Aniram Meena, learned Authorized Representatives for the Department, reiterates the findings of the OIO and further submits that the expenditure incurred by a foreign firm in a foreign country cannot form part of the assessable value of the goods; there is no condition of supplying motors in individual packing in the purchase order; the word "Duty" appearing in Rule 18 of Central Excise Rules, 2002 should be read as "duty payable" under Section 3(1)(a) of Central Excise Act, 1944 and therefore, the appellants were not required to pay duty on the value of the special packing and the rebate should be restricted to the "duty payable". Learned Authorized Representative submits that the contention of the appellant that the issue is revenue neutral is not correct as the appellants have paid duty through the accumulated CENVAT credit and not through cash. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned on the "duty paid" and not on the "duty payable". Moreover, we find that there is no distinction made in Section 4 to suggest that expenditure incurred by persons other than the manufacturer/ exporter shall not be included in the assessable value.A perusal of the above indicates that the price paid or payable by the buyer would become the transaction value notwithstanding the fact that the expenditure on such payment is borne by the assessee or somebody else. The transaction value is defined as under : "Section 4(3)(d): 'transaction value' means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter but does not include the amount of duty of excise, sales tax and other taxes, if any, actually p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less than even 8% duty liable. Further, we also find considerable force in the arguments advanced by the Ld. Advocate that appellant is entitled to refund equivalent to the amount paid in cash after utilization of the Cenvat credit in full. Even otherwise appellant cannot be prevented from paying duty at 16% instead of 8% in view of the provisions of Section 5A. Section 5A was amended after the Tribunal had rendered several decisions to the effect that manufacturer can chose to pay duty even when the goods are fully exempted unconditionally. The very fact that no provision has been made in Section 5A while amending the same to prohibit manufacturer from paying duty in case of unconditional partial exemption at higher rate, the appellant cannot be found fault with for having paid higher rate of duty. Further it is to be observed that having advised the appellant to reclassify the product under a different heading holding the same ineligible for a partial exemption, the departmental officers should not have rejected the refund claim. None of the orders reveal the fact that appellant had paid duty at the advice of the department. We are aware that there is no estoppel in statutory mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable to them. In that circumstances, it is revenue neutral situation, therefore, there was no requirement to issue show cause notice to the appellant. We further taken note of the fact that the demand has been raised against the appellant under Section 11A of the Central Excise Act, 1944. As per the said provision, if the appellant has not paid duty/short paid duty/erroneously refunded of duty is recoverable. In this case, it is the case of the Revenue itself that they were not required to pay duty, therefore, the excess amount paid by the appellant is merely a deposit not a duty. Hence, the provisions of Section 11A of the Act, is not applicable to the case. In that circumstances, the appellant is not required to pay the excess refund claimed by them. 11. In view of the above, we find that as the orders sanctioning rebate is not challenged, any demand under Section 11A cannot be sustained. Moreover, we find that the appellants have taken a plea that the demand is time barred; Revenue has not put forth any evidence to show that the appellants have indulged in any omission or commission of suppression of fact, mis-statement, collusion etc. with intent to evade payment of duty ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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