2008 (4) TMI 178 - AT - Central Excise

Whether demand raised on ground of non-inclusion of designing and development charges in A.V. of speakers for television manufactured, is justified Held, yes since demand is of only Rs.1,03,928, penalty is reduced from Rs. 50,000 to 25,000 - As regards the plea of time-bar, there is a clear finding that the assessee deliberately avoided inclusion and no argument has been advanced to dislodge this finding of willful suppression - demand is sustainable on merits and is not time-barred

Summary

Issues:
Recovery of duty due to alleged undervaluation of designing and development charges for speakers manufactured by a company.

Analysis:
The case involved a show cause notice issued to the appellants proposing the recovery of duty on the ground of alleged undervaluation due to non-inclusion of designing and development charges for speakers manufactured by a specific company. The Joint Commissioner upheld the charges in the notice, partly confirmed the demand, and imposed a penalty, which was subsequently upheld by the Commissioner (Appeals), leading to the appeal by the assessees before the Appellate Tribunal CESTAT, MUMBAI.

The assessees contended that the designing and development charges were not includible in the assessable value of speakers cleared to customers as they related to technical services provided before the manufacturing activities began. However, the Tribunal found that the assessees failed to substantiate this claim. The audit report and subsequent communication from the department highlighted that the assessable value did not include the designing and development charges. As the appellants could not prove that these charges were not related to the cleared speakers, the Tribunal found no merit in their submission regarding the demand.

Regarding the plea of time-bar, the Tribunal noted a clear finding of deliberate avoidance by the assessees in including the designing and development charges in the assessable value. As no argument was presented to refute this finding of wilful suppression, the Tribunal held that the demand was sustainable on merits and not barred by limitation. However, considering the duty demand amount, the penalty imposed was reduced from Rs.50,000 to Rs.25,000.

In conclusion, the appeal was partly allowed by the Appellate Tribunal CESTAT, MUMBAI, with the decision pronounced in court by the Vice President, Ms. Jyoti Balasundaram.