2008 (12) TMI 138 - AT - Central Excise

Includibility of amortization cost of the moulds/dies supplied by buyer/customer free of cost in the assessable value of the excisable goods manufactured there were conflicting judgments on the issue matter resolved by Larger Bench of Tribunal in the case of Mutual Industries Ltd. holding that the proportionate cost of moulds, supplied free by the customer is includible assessee is willing to make the payment of the balance duty - accordingly respondents is directed to make the payment of balance duty together with interest - no intention to evade duty however, it is not a fit case for penalty u/s 11AC

Summary

Issues:
1. Inclusion of amortization cost of moulds/dies in the assessable value of excisable goods.
2. Barred by limitation - Wilful suppression or misstatement of facts.
3. Imposition of penalty under Section 11AC of the Central Excise Act.

Analysis:
1. Inclusion of Amortization Cost:
The case revolved around whether the amortization cost of moulds/dies provided by a customer should be included in the assessable value of the excisable goods. The Tribunal referred to conflicting judgments on this issue until it was resolved by the Larger Bench in the case of Mutual Industries Ltd. The Tribunal held that the cost of moulds supplied free by the customer and used in manufacturing should be included in the assessable value. The Revenue did not dispute that the factory had been audited during the relevant period, and no objections were raised during the audits, indicating no intention to evade duty.

2. Barred by Limitation:
The Commissioner (Appeals) found that the case did not involve wilful suppression or misstatement of facts as the factory had been audited without any objections raised. The Commissioner held that the extended time period clause under Section 11A(1) could not be invoked due to the lack of intentional wrongdoing. Therefore, the impugned demand was considered barred by limitation, and the order-in-original was set aside, allowing the appeal of the respondents.

3. Imposition of Penalty:
The Tribunal considered the circumstances and the willingness of the respondents to pay the balance duty. Despite the factory being closed, the respondents expressed their readiness to settle the outstanding duty. The Tribunal decided not to impose a penalty under Section 11AC of the Central Excise Act, 1944, given the facts and circumstances of the case. The impugned order was modified accordingly, and the appeal filed by the Revenue was disposed of without imposing the penalty.

In conclusion, the judgment addressed the issues of including the amortization cost of moulds/dies in the assessable value of excisable goods, the limitation period for invoking penalties, and the decision not to impose a penalty under Section 11AC based on the circumstances of the case and the willingness of the respondents to pay the balance duty.