2015 (3) TMI 428 - AT - Central Excise

Waiver of pre deposit of duty - Penalty u/s 11AC - Held that - Cost Accountant had not signed the annexures to the Certificate, the Ld. Commr. (Appeal) has confirmed the Order-in-Original dated 30/01/2009 and rejected the appeal filed by the appellant. Now the Ld. Advocate submits that even though the certificate was signed but its annexures were not signed while submitting before the Ld. Commr. (Appeal). However, the same is signed now and a copy is placed before the Tribunal. The contention of the Ld. A.R. for the Revenue on the other hand is that the certificate does not conform to CAS-4 method. Therefore, the same may not be accepted at this stage. The Ld. Advocate submits that all the data required for completing the CAS-4 certificate are available in the present certificate. However, they have no objection to compile the data in accordance with CAS-4 guidelines. We are of the view that in the interest of justice, the appellant be given an opportunity to submit the certificate in proper form i.e. CAS-4 and after the said certificate is submitted, the Ld. Commr. (Appeal) would consider the same in accordance with law. Needless to mention that all issues are kept open in relation to adjudication order dated 30/01/2009.In the result, the impugned order-in-Appeal is set aside to the extent of deciding the issue in relation to the adjudication order dated 30/01/2009 and to that extent the matter is remitted to decide the issue on merit, without insisting for any pre-deposit - Decided in favour of assesse.

Summary

Issues Involved: Application for waiver of pre-deposit of duty and penalty under Section 11AC of CEA, 1944. Examination of Order-in-Originals dated 31/12/2008 and 30/01/2009. Dispute over acceptance of Cost Accountant's certificate for determining assessable value. Compliance with CAS-4 method for filing certificates.

Analysis:

1. Waiver of Pre-deposit and Penalty:
The appellant filed an application seeking waiver of pre-deposit of duty amounting to Rs. 4.83 Lakhs and an equal penalty imposed under Section 11AC of CEA, 1944. The tribunal decided to proceed with the appeal without insisting on the pre-deposit, with the consent of both parties, after considering the arguments presented.

2. Order-in-Originals Examination:
The Ld. Advocate for the appellant highlighted that two Order-in-Originals dated 31/12/2008 and 30/01/2009 were disposed of by a common order-in-appeal. The first order related to demand due to CENVAT Credit, while the second order dealt with alleged undervaluation of goods on stock transfer basis. The Ld. Commissioner (Appeal) rejected the appeal concerning the second order due to issues with the Cost Accountant's certificate. The tribunal observed that different issues were involved, and the second Order-in-Original dated 30/01/2009 was the focus of the current proceedings.

3. Cost Accountant's Certificate Dispute:
The crux of the matter revolved around the acceptance of the Cost Accountant's certificate for determining the assessable value of stock transferred goods. The Ld. Commissioner (Appeal) had rejected the certificate as the annexures were not signed, despite the certificate itself being signed. The appellant later rectified this by ensuring all pages, including annexures, were signed by the Cost Accountant. The Revenue's representative argued that the certificate did not adhere to the CAS-4 method, which raised concerns about its validity.

4. Compliance with CAS-4 Method:
The Revenue contended that the appellant should have followed the CAS-4 method while filing the certificate, even though the demand period was from April 2003 to September 2003. The tribunal agreed to remand the case to the Ld. Commissioner (Appeal) for a fresh decision, allowing the appellant an opportunity to submit the certificate in the proper CAS-4 format. It was emphasized that the appellant should comply with CAS-4 guidelines to ensure the certificate's acceptance and subsequent review by the Ld. Commissioner (Appeal).

5. Final Decision and Remand:
In the interest of justice, the tribunal set aside the impugned order-in-appeal concerning the adjudication order dated 30/01/2009. The matter was remitted for a merit-based decision without requiring any pre-deposit. Both parties were granted a reasonable opportunity for a hearing, and all issues related to the adjudication order were kept open for further consideration.

This detailed analysis encapsulates the key points and legal nuances of the judgment, addressing the issues raised in the case comprehensively.