2009 (12) TMI 813 - AT - Central Excise

Valuation - whether there was ex-factory gate sale and if so, whether the prices therefor genuine as against the depot prices?

Summary

Issues:
1. Assessment based on ex-factory price vs. depot price.
2. Validity of deductions claimed from depot sales.
3. Overlapping periods in show cause notices.
4. Adjudicating authority's approach against remand order.

Analysis:

*Issue 1: Assessment based on ex-factory price vs. depot price*
The case involved a dispute regarding the assessment of duty on excisable goods sold from the factory gate and depot. The appellant contended that ex-factory prices were genuine and should be used for assessment. The Adjudicating Authority acknowledged the existence of factory gate sales to independent buyers and found the ex-factory prices genuine. The Authority concluded that ex-factory prices should form the basis for assessing goods cleared from depots, citing relevant case laws. The Tribunal agreed with this finding, setting aside the duty liability confirmed by the Authority.

*Issue 2: Validity of deductions claimed from depot sales*
The appellant had claimed deductions from depot sales, which were challenged by the Revenue. However, the Adjudicating Authority, after confirming the genuineness of ex-factory prices, proceeded to confirm the demand based on deductions claimed by the appellant. The Tribunal found this approach contradictory to the remand order, as the genuineness of ex-factory prices had been established. Consequently, the Tribunal set aside the duty liability and penalties imposed.

*Issue 3: Overlapping periods in show cause notices*
There was an overlap in the periods covered by show cause notices issued by the Assistant Commissioner and the Commissioner. The Commissioner's notice covered a broader period, invoking the extended period of limitation. Despite this overlap, the Tribunal focused on the assessment based on ex-factory prices and the validity of deductions, leading to setting aside the impugned order.

*Issue 4: Adjudicating authority's approach against remand order*
The Adjudicating Authority's decision to confirm the demand based on deductions, despite finding ex-factory prices genuine, was deemed incorrect by the Tribunal. The Tribunal emphasized that when ex-factory prices are established as genuine and no appeal is filed against such findings, confirming the demand on this basis is erroneous. Consequently, the Tribunal set aside the impugned order, allowing the appeal in favor of the appellant.

In conclusion, the Tribunal ruled in favor of the appellant, emphasizing the genuineness of ex-factory prices for assessing goods cleared from depots. The Tribunal set aside the duty liability, penalties, and interest imposed by the Adjudicating Authority, based on the established genuineness of ex-factory prices.