T.K. Jayaraman, J. - (1.)THIS appeal has been filed against the order -in -Original No. 13/2003 dated 30th July, 2003 passed by the Commissioner of Central Excise, Bangalore in compliance of CEGAT Final order No. F.67 & 68/03 dated 24th January, 2003.
(2.)IN the impugned order the Commissioner has confirmed a demand of Rs. 56,53,087 being duty payable by the appellants on the goods cleared to their sister concern from the R & D centre by adopting the valuation as ordered by CEGAT being the value on stock transfer price for the period from 1994 -95 to 1996 -97. He appropriated an amount of Rs. 26,52,712 already by the appellants. Hence the net liability on the appellants is Rs. 30,00,375 further a penalty of Rs. 5 lakh imposed under Rule 173Q. The appellants strongly challenged the findings of the adjudicating authority.
Sh. Naganand and Shri Venkatnaryanana for the appellants and Sh. Ganesh Havanur for the Revenue.

(3.)THE learned Counsel drew our attention to the original order No. 1/2001 dated 10th February, 2001 which was set aside by the CEGAT. In that order the, amount confirmed was the same as in the present order. Further the penalty in the original order was Rs. 3 lakh, whereas in the impugned order it is Rs. 5 Lakh. It was argued that if the original demand had been correct, the CEGAT would have confirmed the same instead of remanding it to the original authority. This itself shows non -application of mind. Further, in the impugned order the penalty has been enhanced to Rs. 5 lakh. The ld. Advocate submitted that according to them in terms of the CEGAT's order the demand would be limited to Rs. 13,183. They said that they submitted a letter dated 15th July, 2003 with the working sheet for the differential duty. This duty has been deposited with the Government. The differential duty payable by the appellant company has been worked out in respect of cases listed in para 15 of the de novo adjudication order and there is no omission of cases in the list submitted by the appellants company. It was contended that the Commissioner has ignored the earlier adjudication order passed by the Assistant Commissioner regarding valuation which has become final. The department had raised these issues and accepted the same as shown by the appellants regarding valuation. On the same basis the appellants has paid duty on the inter factory clearance on the intermediate goods. Thus there is no suppression of facts. The Commissioner has not examined this aspect at all while erroneously confirming the demands more than six months. The CEGAT has discussed in length about the limitation in the Appeal No. E/61/2001 and held that the demand is to be restricted to a period of 6 months prior to the date of issue of the notice. The same decision of the CEGAT on limitation is applicable to appeal No. E/235/01. Had there been suppression of facts to evade payment of duty as alleged in the notice, the Commissioner would have invoked the provisions Section 11AC of the Act in the order No. 1/2001. But the Commissioner has accepted that there was no suppression of facts to evade payment of duty and accordingly no mandatory penalty was levied on the appellants company. Further the appellants submitted their written submission item wise in support of their contention that the duty demand should be restricted only to Rs. 13,183.