2011 (8) TMI 826 - AT - Central Excise

Undervaluation of Clearances to Sister Concern - Show Cause Notice - Appellant filed price list approved by competent authority - In view of Ballarpur Industries Ltd. (1992 - TMI - 43882 - HIGH COURT OF DELHI), it is difficult to understand as to how the Revenue has concluded that there was misstatement or suppression of facts. Penalty cannot be imposed.

Summary

Issues:
Undervaluation of clearances for captive consumption, Allegation of suppression, Barred by limitation, Central Excise Valuation Rules compliance, Justification of duty demands, Approval of price list by competent authority.

Analysis:

1. Undervaluation of clearances for captive consumption:
The appellants were in appeal against the demand of differential duty, interest, and penalty due to alleged undervaluation of clearances for captive consumption. The appellants had filed a price list with a profit margin approved by the competent authority. However, the Revenue contended that the appellants failed to add the profit as per the audited balance sheet of the previous year while determining the assessable value. The Revenue relied on the decision in CCE, Aurangabad vs Raymonds Ltd. to support their argument.

2. Allegation of suppression:
The advocate for the appellants argued that there was no undervaluation as the profit margin included deferred payment of sales tax, which should be deducted from the gross profit. She also contended that the duty paid was available to their unit at Gurgaon, resulting in a revenue-neutral situation. Moreover, she claimed that the demands were barred by limitation as the price list was approved by the competent authority and within the department's knowledge. She cited cases such as Ballarpur Industries Ltd. vs. Union of India and Rashtriya Chemicals & Fertilizers Ltd. vs. Commr. of C.Ex., Mumbai to support her arguments.

3. Barred by limitation:
The Tribunal found that the show-cause notice issued for undervaluation of clearances was bad by limitation as the appellants had filed their price list during the impugned period, which was approved by the competent authority. Citing the decision in Ballarpur Industries Ltd., the Tribunal concluded that the demands were not sustainable due to the limitation issue.

4. Central Excise Valuation Rules compliance:
The Revenue argued that the appellants were required to add the profit from the audited balance sheet of the previous year while determining the assessable value, which they failed to do. However, the Tribunal found that the show-cause notice was not sustainable due to the limitation aspect, as the price list was approved by the competent authority.

5. Justification of duty demands:
After hearing both sides, the Tribunal observed that the show-cause notice was issued based on undervaluation allegations, but the approval of the price list by the competent authority undermined the suppression claim. Citing the decision in Ballarpur Industries Ltd., the Tribunal concluded that the demands were not sustainable due to the limitation issue and set aside the impugned order.

In conclusion, the appeal was allowed with consequential relief by setting aside the impugned order.