2014 (8) TMI 220 - AT - Central Excise

Valuation of goods - related parties / inter-connected undertaking - transaction value with the Oil Marketing Companies (OMC) - Held that - in case of BCPL 2009 (6) TMI 166 - CESTAT, MUMBAI it was held that, IPP based price cannot be considered as transaction value as it was an artificially fixed notional value. In such an agreement, price was definitely not the sole consideration for sale. It is based on this reasoning, it was held in the BPCL case that sale price to OMC cannot be accepted as sole consideration for sale. - Decision of BCPL case in not applicable in the present situation. However, we find that the reasoning adopted is flawed as Import Parity Price is not an artificially fixed price. It is an actual price at the time and place of import which is also place for the sales effected by the Refinery or OMC to another OMC. To say that such a price is an artificially fixed notional value is completely contrary to facts. Import price cannot be influenced by the marketing companies situated in India. Therefore, there is a major flaw in the reasoning adopted in the order relied upon by the Revenue - import price agreed between one OMC and another based on the MOU reached between them can be considered as a transaction value and such a finding was also be upheld in the case of HPCL 2005 (2) TMI 357 - CESTAT, BANGALORE - Decided against Revenue.

Issues:
1. Appeal against Order-in-Appeal No. PD/250/M-IV/2003 passed by the Commissioner of Central Excise (Appeals), Mumbai-IV.
2. Assessment of assessable value declared by M/s IOCL based on transaction value with Oil Marketing Companies (OMC) as per Memorandum of Understanding (MOU).
3. Consideration of Import Parity price for Air Turbine Fuel (ATF) sold to OMCs.
4. Interpretation of transaction value under Section 4(1)(a) of the Central Excise Act, 1944.

Analysis:
1. The Revenue appealed against the Order-in-Appeal that accepted the assessable value declared by M/s IOCL based on the transaction value with OMCs as per the MOU directed by the Government. The Revenue contended that the price for ATF sold to OMCs should be the same as for other buyers, relying on a Tribunal decision and argued that the sale price to OMCs was not the sole consideration for sale.

2. The respondent's counsel argued that previous Tribunal decisions and the Supreme Court affirmed that the price at which goods were sold to OMCs based on agreements like Import Parity Price could be considered as the transaction value for excise duty discharge. Citing precedents, the counsel contended that the impugned order was legally sound and should be upheld.

3. The Tribunal analyzed the conflicting views on the Import Parity Price, noting that while the Revenue argued it was artificially fixed, the Tribunal found it to be the actual price at the time and place of import. The Tribunal disagreed with the Revenue's reasoning and upheld the view that prices agreed upon between OMCs based on MOUs could constitute transaction value, as established in previous decisions including one affirmed by the Supreme Court.

4. Consequently, the Tribunal dismissed the Revenue's appeal, finding no merit in their arguments and upholding the assessable value determined based on the transaction value with OMCs as per the MOU, in line with the precedents and legal interpretations provided.

Judgment Summary:
The Appellate Tribunal CESTAT Mumbai upheld the assessable value declared by M/s IOCL based on the transaction value with Oil Marketing Companies (OMC) as per the Memorandum of Understanding (MOU) directed by the Government. The Tribunal dismissed the Revenue's appeal, emphasizing that prices agreed upon between OMCs based on MOUs could constitute transaction value for excise duty discharge, contrary to the Revenue's argument that such prices were artificially fixed. The decision was based on legal precedents and interpretations under the Central Excise Act, 1944, affirming the validity of the assessable value determined in the impugned order.

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