2007 (7) TMI 28 - AT - Central Excise

Valuation (Central excise) - Revenue is of the view that appellant is not entitle for 12% retail margin on the assessable value on the ground that their was no retail sale made by the appellant - Held that revenue contention was not correct and set aside

Summary

Issues:
- Revenue's appeal against the order allowing retail margin in the determination of assessable value of goods cleared by the respondents.
- Challenge to the decision to allow a 12% retail margin.
- Applicability of apex court's judgment in Modi Xerox Ltd. v. Collector.
- Acceptance of 12% retail margin in previous Commissioner-level orders.
- Department's challenge against the appellate Commissioner's order.
- Scope of the show-cause notices regarding retail sale.

Analysis:
1. The appeals were filed by the Revenue challenging the order of the Commissioner (Appeals) allowing a 12% retail margin in the determination of assessable value of goods cleared by the respondents at the factory gate. The impugned order was passed in appeals filed by the assessee against several Orders-in-Original covering the period from September 1997 to June 2000, and another order covering the period from July 2000 to February 2001. The duty for the latter period was already paid by the assessee under new Valuation Rules, making the Revenue's grievance against the appellate Commissioner's order for that period invalid.

2. The main challenge in the appeals was against the decision to allow a 12% retail margin, particularly for the pre-July 2000 period. The appellant argued that there was no retail sale by the respondents during that time, citing the apex court's judgment in Modi Xerox Ltd. v. Collector, where a 28% retail margin was allowed. The appellant contended that the apex court's judgment was not applicable in this case as there were no transactions through dealers. The department's case was limited to this point, while the respondents' counsel highlighted previous Commissioner-level orders allowing a 12% retail margin in similar situations involving the same factory.

3. It was noted that the department had accepted previous orders allowing a 12% retail margin in the valuation of goods in the respondents' cases, as evidenced by Orders-in-Original and Orders-in-Appeal from Commissioner-level authorities. The department's challenge in the present appeals was deemed not maintainable as the previous orders were accepted. The department's contention that there was no retail sale contradicted the SCNs, which had raised the issue of the extent to which retail margin would be admissible, indicating that the current appeals went beyond the scope of the SCNs.

4. Ultimately, the Revenue's appeals were dismissed, concluding the matter in favor of the respondents. The judgment was dictated and pronounced in open court, bringing the legal proceedings to a close.