Customs, Excise and Gold Tribunal - Mumbai
Ashok Organic Industries Ltd. vs Commissioner Of Customs And Central ... on 21 June, 2001
ORDER Ms. Jyoti Balasundaram, Member (J)
1. This appeal is against the order of the Commissioner of Central Excise, Vadodara confirming duty demand of Rs. 53,06,590/- and imposing penalty of Rs. 5 lakhs upon the appellant who are manufacturers of various chemicals. The issue in dispute relates to price list filed by the assessee in Part II and Part VI showing different prices for Glacial Acetic Acid and Acetic Anhydride. The assessee has paid duty on the value of Rs. 11/-, Rs. 13/-, Rs. 15/- and Rs. 17/- on Glacial Acetic Acid during the period from June to November, 1992 for captive consumption as per Part II price lists whereas they sold the said goods @ Rs. 16/- to Rs. 25/- during the same period to independent buyers, filing price lists under Part II. They were clearing Acetic Anhydride at selling price of Rs. 1.80 per kg. for captive consumption by their sister consumption while the same was product was being sold to independent buyer @ Rs. 22.15 per kg, thus resulting in short levy.
2. It is the contention of the learned counsel for the appellants that the demand is barred by limitation since the price lists filed by the assessee both under Part II as well Part VI for the same goods had been approved and therefore question of suppression does not arise so as to apply extended period of limitation. it is the further contention that since modvat credit could be availed by the sister concern, there can be no intention to evade payment of duty and hence the proviso to Section 11A is not applicable for this reason also. The learned DR opposed the contentions of the learned Counsel pointing out that the Commissioner has clearly held that the assessees never declared that the quality of the goods sold to independent buyers and those sold to the sister concern and captively consumed is the same and in the absence of such information the reason for variation between the two prices could not be detected by the department.
3. We have carefully considered the rival submissions. We see force in the contention that once price lists identically described and field both under Part II and Part VI and approved by the authorities below the question of suppression does not arise. We therefore hold that the demand is barred by limitation and accordingly set aside the same. The penalty is also set aside in view of the above.
4. Impugned order is set aside and the appeal is allowed.