9911796707
TMI Blog2025 (1) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... had cleared goods on stock transfer to their sister units at Dadra and Silvasaa but while clearing the goods, it was not possible to determine the cost of production for each removal and therefore, the appellant transfer the stock at pre-determined value based on previous year CAS-4 data and after the cost audit which resulted in over or under valuation when each invoice was taken separately and the same resulted in excess payment or short-payment. It is noted that wherever there was a short payment of duty, the appellant paid it immediately along with interest and in the case of excess payment of duty, the Department has demanded the same as to the extent of excess duty paid where the appellant has availed the excess refund - sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal of the appellant and upheld the Order-in-Original. 2. Briefly the facts of the present case are that the appellant are engaged in the manufacture of pharmaceutical products falling under Chapter sub-heading 3003 9090 3004 9099 to the Central Excise Tariff Act, 1985 and availing benefit of Notification No. 56/2002 Dt. 14.11.2002 as amended. During the period from 27.08.2004 to 07.06.2005, the appellant manufactured and cleared part of their medicaments to Sun Pharmaceutical Industries, Dadra (UT) and Sun Pharmaceutical Industries Ltd, Silvasaa (UT), Appellant's sister concerns i, e. related parties. Such clearance was made under Stock Transfer Invoice. These goods are used in further manufacture by those receivers. Considering thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d following Notification No 56/2002) resulted in 'excess' refund not falling under impugned notification (d) Duty should be paid for short payment, refund should be reversed being excess along with interest thereon. 3. After following the due process, the original authority after noticing that the appellant has paid differential duty along with interest before the issuance of Show Cause Notice and also appropriated the same to impose the penalty of Rs.37,41,825/- on the appellant under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals), who rejected the same. Hence, the present appeal. 4. Heard bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same has been given, SCN should not be served on the person for paying the duty and interest. In support of this submission, he relied upon the decision of the Hon ble Apex Court in the case of UOI Vs Rajasthan Mills- 2009 (238) ELT 3 (SC). He further submits that the appellant has paid all duty and undisputed interest before the issuance of Show Cause Notice and this fact is also confirmed in the Show Cause Notice at Para 5. He further submits that once the appellant has paid duty along with interest then as per the provision of sub-section (2B) of Section 11A, the Central Excise officer should not have issued the Show Cause Notice because there is no suppression of facts as the appellant admittedly have been filing the AR-1 Returns and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has suppressed the material fact from the Department that they have been clearing the goods on stock transfer to their sister units. He further submits that though the appellant have paid the differential duty along with interest on being pointed out by the Department. He further submits that the appellant are liable to pay the penalty as held by both the authorities below because they have not specifically stated in their Returns filed from time to time that they have stock transferred their goods to their sister units and therefore, penalty has rightly been imposed on them. In support of his submission, he relied upon the following decisions: Union of India versus VVF Limited reported as 2020 (372) E.L.T. 495 (S.C.) Union of India Vers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has availed the excess refund. We also note that the appellant has availed the self-credit refund of duty paid by them in cash through PLA and no refund has been granted by the Government out of their pocket which means that there is no loss to Revenue. We also note that sub-section (2B) of Section 11A specifically provides that the assessee in default may, before the notice issued under sub-section (1) is served on him, make payment of the unpaid duty on the basis of his own ascertainment or as ascertained by a Central Excise Officer and inform the Central Excise Officer in writing about the payment made by him and in that event he would not be given the demand notice under sub-section (1). 11. We also note here that the appellant has pai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
