2012 (3) TMI 369 - AT - Central Excise

Waiver of pre deposit - appellant who have paid excise duty in respect of the goods supplied to their sister concern M/s. Nalwa Steel Pvt. Ltd. in accordance with Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - Held that - during the relevant period the appellant had supplied pig iron, rails, etc., to its sister concern M/s. Nalwa Steel Pvt. Ltd. as also independent buyers for consideration. It is also not in dispute that the appellant raised invoices for the supplies made to the sister concern and charged consideration amount and also paid the excise duty on cost basis in accordance with Section 4 of the Central Excise Act, 1944. Plea of the Department is that since M/s. Nalwa Steel Pvt. Ltd. falls within the definition of related party as defined under Section 4(3)(b)(i), the appellant ought to have assessed the excise duty payable as per Rule 8 of the Valuation Rules - prima facie the excise duty paid by the appellant in respect of goods sold to the sister concern on the basis of sale consideration as per Section 4(3)(b)(i) of the Central Excise Act cannot be faulted. Thus, we conclude that appellant has been able to make out a prima facie case justifying the waiver of pre-deposit of duty demand with interest and penalty - Stay granted.

Summary

Issues:
Application under Section 35F of the Central Excise Act seeking waiver of pre-deposit of excise duty, interest, and penalty. Interpretation of Rule 8 of the Central Excise Valuation Rules regarding valuation of goods supplied to a related party. Adjudication of whether the appellant correctly paid excise duty in accordance with Section 4 of the Central Excise Act. Assessment of whether the appellant correctly valued goods supplied to a sister concern for excise duty purposes.

Analysis:
The case involved an application seeking waiver of pre-deposit of excise duty, interest, and penalty under Section 35F of the Central Excise Act. The appellant, engaged in the manufacture of Pig Iron and Rails, sold goods to independent buyers and a related person, M/s. Nalwa Steel Pvt. Ltd. The dispute arose when the department contended that the appellant undervalued goods supplied to the sister concern, triggering a show cause notice. The adjudicating authority upheld the demand of excise duty based on Rule 8 of the Valuation Rules, rejecting the appellant's plea that excise duty was correctly paid under Section 4 of the Central Excise Act.

During the appeal, the appellant argued that goods supplied to the sister concern were valued correctly based on market rates, similar to open market sales. The appellant's counsel contended that Rule 8 of the Valuation Rules did not apply as the transaction was not a case of no sale or transfer of goods. On the other hand, the department argued in support of the adjudicating authority's decision, stating that the appellant failed to produce relevant records during proceedings, justifying valuation under Rule 8.

After considering the contentions and evidence, the Tribunal found that the appellant had indeed supplied goods to both the sister concern and independent buyers during the relevant period. The Tribunal noted that the appellant invoiced and paid excise duty on a cost basis for supplies to the sister concern in accordance with Section 4 of the Central Excise Act. The Tribunal interpreted Rule 8 of the Valuation Rules, emphasizing that it applies to cases of transfer without consideration, which was not the situation in this case. As there was no evidence of fabricated sale documents, the Tribunal concluded that Rule 8 did not apply, and the appellant's valuation of goods for excise duty under Section 4 was justified.

Consequently, the Tribunal allowed the stay application, waiving the pre-deposit condition of duty demand, penalty, and interest, thereby staying the recovery from the appellant. The appeal was scheduled for further proceedings in due course.