ORDER
Gowri Shankar, Member (T)
1. The appellant manufactures in its factory at Taloja coils out of ingots of aluminium. It transfers these coils to its factory at Kalwa, where these coils are converted into foils of aluminium. The appellant also sold some of the aluminium coils that it manufactured at Taloja. While paying the duty on the coils that it transferred to Kalwa, it declared as the assessable value equal to the cost of manufacture as provided in Rule 6 (b) (ii). The notice issued to it alleged under payment of duty on the ground that the assessable value ought to have been based on the price at which the appellant sold these goods to independent buyers. Adjudicating on this notice the Commissioner confirmed the duty and imposed penalty. Hence this appeal.
2. The counsel for the appellant does not advance any argument as to the merits of the issue. The contention of the counsel for the appellant is that the entire demand, invoking the extended period of limitation contained in the proviso under Sub-section (1) of Section 11A of the Act by alleging suppression of facts with intent evade duty, cannot be sustained. He submits that there can be no intent to evade duty by the assessee, as whatever duty that it paid on the goods at Taloja would be available to it as credit at Kalwa, relying on this purpose the judgment of the Tribunal in Essel Packaging Industries v. CCE 2000 (117) ELT 466. The Tribunal held in that decision that in a situation where both factories are owned by same person, credit is available in the factory of which goods are transferred of the duty paid in the manufacture, there can be no intention evade duty for the reason that it is the same person who pays the duty and take credit and whatever duty paid in one factory would be available in the other factory. Except in a situation in which duty paid in the first factory is not availed by operation of law as credit in the second factory, or the assessee deliberately under pays the duty in order to prevent accumulation in the second factory which could not be utilised. Neither of the situation exists here. The departmental representative is not able to say why the ratio of this decision should not be applied, although he reiterates the order of the Commissioner. The extended period of limitation therefore would not be available to the department.
3. The appeal is accordingly allowed and the impugned order set aside.