2015 (4) TMI 354 - SC - Central Excise

100% EOU - DTA clearance - Valuation of goods Rule 4 or under Rule 7 of the Customs Valuation Rules, 1988 - Benefit of Notification No.8/97-CE dated 1.3.1997 or Notification no.2/95 CE - manufacturing of cotton fabrics - additional ground raised for the first time in the miscellaneous application was allowed by the tribunal - Held that - Tribunal was not entirely wrong in allowing the respondent to raise the issue of valuation. It is because of the reason that in the Order-in-Original passed by the Commissioner, after holding that the Notification no.2/95 would be applicable and the respondent is not entitled for exemption under Notification no. 8/97, while determining the duty payable, the valuation which is taken is on the basis of clearance of cotton fabrics to the DTA. Therefore, it was within the domain of the Tribunal to decide as to whether the aforesaid basis at which the cotton fabric was cleared to the DTP was rightly taken or not. The order of the Tribunal, insofar as this aspect is concerned, namely, applicability of Rule 4 of the Valuation Rules, appears to be correct. While undertaking this limited enquiry into the said question, the Tribunal decided a pure question of law. In cases where excisable goods are produced or manufactured by hundred per cent export oriented undertaking are allowed to be sold in India, the duty of excise has to be the amount equal to the aggregate of the duties of customs which would be leviable under Section 12 of the Customs Act, on like goods produced or manufactured outside India if imported into India and where the said duties of custom are chargeable by reference to their value, the value of such excisable goods shall be determined, in accordance with the provisions of the Customs Act and Customs Tariff Act, 1975. - if Rule 4 is not applicable, the valuation of the goods has to be arrived at by applying Rules 5 and 8 in sequential order. Tribunal fell in error as applicability of Rules 5 and 6 depended on certain factual aspects which had to be gone into. The Tribunal has made certain observations on facts but without any material before it. The appropriate course of action for the Tribunal, in such a given situation was to remit the case back to the Commissioner to decide the issue after allowing the appellant to produce evidence in this behalf. - Matter remanded back - Decided in favour of Revenue.

Summary

Issues Involved:
1. Applicability of Notification nos. 2/95 or 8/97 for excise duty exemption.
2. Valuation of goods under Rule 7 of the Customs Valuation Rules, 1988.

Applicability of Notification nos. 2/95 or 8/97:
The case involved a dispute regarding the applicability of Notification nos. 2/95 or 8/97 for excise duty exemption to a manufacturer of cotton fabrics. The Department contended that Notification no.2/95 applied, while the respondent argued for the applicability of Notification no. 8/97. The Commissioner upheld the applicability of Notification no.2/95, leading to an appeal by the respondent. The Tribunal affirmed the Commissioner's decision, ruling in favor of Notification no.2/95.

Valuation of Goods under Rule 7:
During the appeals process, the respondent sought to raise additional grounds, including the valuation of goods under Rule 7 of the Customs Valuation Rules, 1988. The Department objected, stating that this ground was not raised earlier and was not part of the original proceedings. However, the Tribunal allowed the respondent to raise this ground and ultimately accepted the plea regarding the valuation under Rule 7. The Tribunal reasoned that the unique nature of the goods made it challenging to determine the transaction value under Rules 5 and 6, thus applying Rule 7 for valuation.

The Tribunal's decision on the valuation under Rule 7 was challenged by the Revenue in an appeal. The Tribunal's ruling was based on the consideration that the sale price of goods in India by the respondent could not be considered as a price in the course of international trade, in line with the proviso to Section 3 of the Central Excise Act. However, the Tribunal erred in not considering certain factual aspects before applying Rules 5 and 6. As a result, the Tribunal's decision on the valuation under Rule 7 was set aside, and the case was remitted back to the Commissioner for a proper determination of the applicable valuation rule after allowing the parties to present relevant evidence.

In related appeals, where the issue of Rule 4's applicability was the sole concern, the decisions were aligned with the findings in the earlier case, leading to the dismissal of those appeals as well.