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TMI Blog2005 (1) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... sold from the depots at Pune, Delhi and Calcutta. No part of the consignment was sold from the Chennai depot. We have applied the cited case law to the facts of this case. The Supreme Court s judgment in the case of Prabhat Zarda Factory Limited [ 2002 (11) TMI 95 - SC ORDER] also supports the Revenue s view in this case. Thus, we endorse the view taken by the Commissioner insofar as the valuation of the goods is concerned. The Commissioner has also, partly accepted the assessee s plea of limitation. What remains to be considered is whether the penalties imposed by him are sustainable. Admittedly, the entire amount of duty, and more than that, was paid by the assessee before issuance of the show cause notice. It has been consistently held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Calcutta. The appellants paid duty on the subject goods manufactured and removed from the Sholinghur factory during the above period on the basis of the price prevailing at the Chennai depot at the time of removal of the goods from factory. The department objected to this and took the view that the assessable value of the goods should be the price at the Pune, Delhi and Calcutta depots, depending on from where the goods were ultimately sold. On this basis, a show cause notice was issued to the assessee demanding differential duty on the differential value of the goods for the aforesaid period, by invoking the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act on the basis of alleged suppression o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods in terms of proviso (ia) to Section 4(1)(a) read with the definition of "place of removal" under Clause (b) of sub-section (4) of the said Section. Ld. Counsel, in this connection, relies on the following decisions of the Tribunal. 1. Malwa Cotton Spinning Mills Ltd. v. CCE - 2001 (132) E.L.T. 671 2. Lipi Data Systems Ltd. v. CCE, Jaipur - 2001 (130) E.L.T. 91 3. Castrol India Ltd. v. CCE, New Delhi - 2000 (118) E.L.T. 35 It is submitted that the decision in Castrol India case was affirmed by the Supreme Court vide 2000 (118) E.L.T. 35 = 2000 (121) E.L.T. A224 (S.C.). Reliance is also placed on the Board's Circular No. 251/85/96-C.X., dated 14-10-1996. It is argued that the issue is squarely covered in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods are ordinarily sold by the assessee is different for different places of removal, each such price shall, subject to the existence of other circumstances specified in clause (a), be deemed to be the normal price of such goods in relation to each such place of removal." Against the backdrop of the above provisions, we have got to analyse the undisputed facts of this case. The subject goods were removed on payment of duty from Sholinghur factory to packing godown. That was a stock transfer. From the godown, the goods in fully packed condition were stock-transferred to the Chennai depot. Stocks transferred from their Padi (Chennai) factory were also received in a similar manner in this depot. A part of the stock in this depot was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heme of marketing, their goods were ordinarily sold at Pune, Delhi and Calcutta and not at Chennai. Here the prices charged by the Pune, Delhi and Calcutta depots should be taken as "price at which such goods are ordinarily sold" for the purpose of the above proviso. In this view of the matter, the decision recorded by the Commissioner appears to be based on a reasonable interpretation of proviso (ia) ibid. The Commissioner has ignored the sale price at Chennai depot and adopted the sale prices of the other depots from where the appellants' goods were ordinarily sold and the subject goods were actually sold. This seems to be in accordance with the terms of Section 4, as amended with effect from 28-9-1996. In Circular No. 14-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court's judgment in the case of Prabhat Zarda Factory Limited (supra) also supports the Revenue's view in this case. 7. For the reasons noted, we endorse the view taken by the Commissioner insofar as the valuation of the goods is concerned. The Commissioner has also, partly accepted the assessee's plea of limitation. What remains to be considered is whether the penalties imposed by him are sustainable. Admittedly, the entire amount of duty, and more than that, was paid by the assessee before issuance of the show cause notice. It has been consistently held by the Apex Court that, where duty was paid prior to issuance of show cause notice, no penalty is liable to be imposed on the assessee under Section 11AC or under Rule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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