2005 (9) TMI 528 - AT - Central Excise

Summary

Issues:
- Correct profit element in the cost of production
- Refusal of certificate under Rule 57E

Analysis:
The appellants manufactured sintered products for captive consumption in another unit and filed a classification list under regular invoices. The Department found that the appellants did not include the correct profit while computing the value of the captively consumed goods. The audit revealed that the actual profit earned was 19.4%, not 14.4% as claimed by the appellants. The appellants paid the differential duty arising from the error and informed the Department. However, the Department took no further action on the issue. Subsequently, the appellants applied for a certificate under Rule 57E, which was refused because they did not file a declaration under Rule 173C. The Commissioner (Appeals) upheld the refusal.

The advocate for the appellants argued that the additional duty was paid promptly upon discovery of the profit miscalculation, even though it was beyond the six-month period. The appellants had no intention to understate value or evade duty, as the goods were consumed internally, and any duty paid would be available as credit to the other unit. The Department's lack of action on demanding interest or imposing penalties indicated acceptance that there was no suppression or misdeclaration. Therefore, the denial of the Rule 57E certificate was unjustified.

After considering the arguments, it was observed that the Department did not allege suppression or misdeclaration of value. The appellants rectified the error by paying the differential duty, and the Department did not take further punitive action. This lack of action suggested that the Department acknowledged there was no intentional wrongdoing on the part of the appellants. Consequently, the denial of the Rule 57E certificate was deemed unwarranted.

The appeal was allowed, and it was directed that the certificate under Rule 57E be issued to the appellants for the additional duty paid, as requested by the Assistant Commissioner.