PER R. Muralhdhar :

The issue involved in the present appeal relates to the valuation of goods, namely insulated wires and bare copper wires, cleared by the appellant during the financial years 2003–04 and 2004–05. The Department alleged that the value adopted by the appellant during the said period was incorrect, resulting in evasion of central excise duty amounting to Rs.21,07,000/-. Accordingly, a show cause notice dated 29.04.2008 was issued. The adjudicating authority, after due process, confirmed the demand, which was subsequently upheld by the Commissioner (Appeals). On further appeal, this Hon’ble Tribunal remanded the matter to the adjudicating authority with directions to verify all relevant records and pass a fresh, reasoned order. Pursuant to the remand, the adjudicating authority:

 Dropped the demand pertaining to FY 2003–04, and

 Confirmed duty of ₹2,74,849/- for the remaining period.

2. Aggrieved by the confirmed demand, the appellant filed an appeal before the Commissioner (Appeals), who rejected the appeal. Hence, the present appeal before this Tribunal.

3. The Learned Counsel for the appellant submits as under:

 The appellant had cleared the goods on sale basis through their own Depots.

 Various post-removal expenses were incurred at the depot level, which were not considered by the adjudicating authority while determining the assessable value.

 The appellant had also discharged applicable taxes on such clearances, which has been ignored while confirming the demand.

4. Therefore, he submits that the valuation adopted by the Department is incorrect, and the demand is not sustainable on merits.

5. The appellant further contends that the demand is barred by limitation, on the following grounds:

 The Department was already in possession of relevant records [Balance sheet for 2004-05 filed on 10.05.2006].

 The appellant had been regularly filing ER-1 returns, disclosing all relevant details.

 There is no suppression of facts or intent to evade duty.

6. Therefore, issuance of the show cause notice on 29.04.2008 invoking the extended period is legally unsustainable.

7. The Ld. AR submits that the appellant cleared the goods to their own depots at a lower value. However, the goods were ultimately sold from the depots at a higher value. Therefore, the higher depot sale price should be adopted for the purpose of valuation.

8. Heard both the sides and perused the documents placed before us.

9. The appellants have cleared their goods to their own depots, from wherein they were selling the goods to their ultimate customers. The Ld. Consultant has contended that the Duty has been paid at the time and place of removal at the factory gate itself. On a specific query as to whether the appellant has opted for Provisional Assessment, he submits that such permission was not sought by the appellant in terms of Rule 7 of the Valuation Rules 2000. Therefore, we are not in agreement with the appellant that the duty paid at the time of removal of the goods from the place of removal itself should be taken as the correct duty to be paid. Admittedly the appellant has been realizing higher value from the ultimate customers. When the goods were sold from the depots, the correct procedure, which should have been followed by the appellant, is to opt for provisional assessment under Rule 7 of the Valuation Rules. After clearing the goods on provisional assessment basis, the final assessment should be completed in a time bound manner. This was not done in this case. Therefore, we are not inclined to entertain the appellant’s plea to set aside the impugned order on merits.

10. However, we find substantial force in the appellant’s argument that the demand would be hit by time bar clause. It is on record that the demand has been raised solely based on the Balance Sheet figures, and the figures shown in the Monthly ER 1 Returns, as can be seen from the show cause notice. The Balance Sheet figur