2013 (7) TMI 1015 - AT - Central Excise

Valuation - determination of assessable value of the said metering units and suction units cleared by the appellant to their Bombay unit - difference of opinion - majority order. Held that - In view of the majority order demand of duty within the period of limitation is upheld, which is required to be quantified by the Original Adjudicating Authority. The interest liability would be examined by the Original Adjudicating Authority in accordance with law. However, the demand beyond the period of limitation is set aside along with setting aside of penalties imposed upon all the appellants.

Issues Involved:
1. Assessable value of metering units and suction units cleared to the Bombay unit.
2. Demand of differential duty and imposition of penalties.
3. Applicability of revenue-neutrality principle.
4. Invocation of the extended period under Section 11A of the Central Excise Act, 1944.
5. Determination of duty liability within the normal period of limitation.

Detailed Analysis:

1. Assessable Value of Metering Units and Suction Units:
The appellant cleared metering units and suction units from their factory in Ahmedabad to their Bombay unit. The dispute centered on the assessable value of these units and the consequent demand of Rs. 85,83,356/-.

2. Demand of Differential Duty and Imposition of Penalties:
Initially, the Commissioner dropped the demand as time-barred, observing that the appellant had filed classification and price lists, and the Revenue was aware of all relevant details. However, the Tribunal remanded the matter for fresh adjudication, leading to the confirmation of the demand and imposition of penalties upon the appellants.

3. Applicability of Revenue-Neutrality Principle:
The appellant argued that the duty paid by the Ahmedabad unit was availed as Modvat credit by the Bombay unit, making the situation revenue-neutral. The Tribunal referred to several judgments, including Tenneco RC India Pvt. Ltd. Vs. CCE Chennai and Mafatlal Industries Ltd. Vs. CCE Daman, which held that in cases where units belong to the same company, the situation is revenue-neutral, and the confirmation of the demand is not justified.

4. Invocation of the Extended Period under Section 11A of the Central Excise Act, 1944:
The Member (Technical) disagreed with the Member (Judicial) on the application of revenue-neutrality. He emphasized that the Tribunal cannot take equity into consideration and must adhere to the law. He argued that the government should recover the duty from one unit even if the goods are cleared to another unit of the same company. He also noted that the extended period under Section 11A requires proof of suppression of facts, misdeclaration, fraud, or collusion with intent to evade duty. In this case, there was no evidence to show an intention to evade duty, thus the extended period could not be invoked, and penalties were not justified.

5. Determination of Duty Liability within the Normal Period of Limitation:
The third Member (Mr. M.V. Ravindran) was called to resolve the difference of opinion between the Members. He upheld the view that the demand for the normal period of limitation should be sustained. He referenced the case of I M Power Ltd., which supported the demand of duty within the limitation period under Section 11A(1). Consequently, the demand within the normal period of limitation was upheld, to be quantified by the Original Adjudicating Authority, while the demand beyond the limitation period and penalties were set aside.

Final Order:
The demand of duty within the period of limitation was upheld and required to be quantified by the Original Adjudicating Authority. The interest liability would be examined in accordance with the law. The demand beyond the period of limitation and the penalties imposed upon the appellants were set aside. All appeals were disposed of accordingly.

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