2013 (12) TMI 927 - AT - Central Excise

Adoption of cost construction method - Waiver of Pre-deposit Held that - The Tribunal already settled the issue for the clearances made to their sister units are liable to be assessed by following comparable goods - The applicants have failed to make out a prima facie case for total waiver the applicant has already deposited a sum of Rs.10 lakhs - the applicants directed to deposit a further sum of Rupees twenty lakhs as pre-deposit upon such submission rest of the duty to be stayed till the disposal Partial stay granted.

Summary

Issues:
1. Application for waiver of predeposit of duty
2. Dispute regarding assessment of duty on clearances made to sister units
3. Application of cost construction method for duty payment
4. Tribunal's previous decision on assessment based on value of comparable goods
5. Requirement of predeposit based on Tribunal and Supreme Court decisions

Analysis:

1. The applicant filed an application seeking waiver of predeposit of duty amounting to Rs.42,08,620/- along with interest and penalty of Rs.10 lakhs. The applicant's counsel argued that they manufactured 'Vacuum Interrupter Tubes' and 'Vacuum Contactor Units', and while they paid duty on goods sold to independent buyers, they used the cost construction method for goods cleared to sister units during 1994-95. The Commissioner demanded duty based on the value of comparable goods, but the Tribunal, in a remand order, directed the use of the value of comparable goods. The counsel contended that subsequent developments in the law required the application of CAS-4 in cases of disputes over the cost construction method, citing various Tribunal decisions supporting their duty payment approach.

2. The Assistant Commissioner argued that a previous Tribunal order dated 23.4.2002 held that clearances to sister units should be assessed based on the value of comparable goods. The appeal to the Supreme Court against this decision was rejected. Therefore, the Assistant Commissioner insisted on the full predeposit of the tax amount, interest, and penalty, emphasizing that the case pertained to 1994-95, warranting no leniency in the predeposit requirement at this stage.

3. After considering both arguments, the Tribunal found merit in the Assistant Commissioner's submission. Referring to the Tribunal's earlier decision, it was established that clearances to sister units should be assessed based on the value of comparable goods, and the applicants were liable to pay the differential duty for these transactions. The Tribunal noted that the Supreme Court had already dismissed a challenge to this decision in a subsequent case. Consequently, the Tribunal concluded that the applicants had not established a prima facie case for a total waiver. The Tribunal directed the applicants to deposit an additional sum of Rs.20,00,000/- within four weeks, in addition to the Rs.10 lakhs already deposited. Upon compliance, the predeposit of the remaining dues would be waived, and recovery stayed pending the appeal's disposal.