2017 (1) TMI 1361 - AT - Central Excise

Determination of the assessable value - According to law as that was prevailing during material period, sale price charged in respect of a solitary transaction did not become basis for determination of assessable value of the goods cleared from any of the above said place of removal at the time of removal thereof - Appellant submitted that a combined reading of the provision of Section 4(1) and 4(4) of the Act leads to the conclusion that the normal sale price of the excisable goods prevailed at a place of removal at the time of removal thereof was recognised by law to be basis for determination of assessable value in respect of unrelated party transactions. Held that - Representative sale price prevailed at the particular point of time at the place of removal to satisfy the condition of Section 4(1) (a) of the Central Excise Act, 1944 was not considered by that Authority. Such legal infirmities demonstrate improper application of law. Therefore, in the light of the above analysis of law, it would be proper for both sides to place their case before the appellate authority on the date that may be fixed by him, issuing notice to both sides within three months of receipt of this order. Appellant s further submission is that the time-bar aspect may also to be looked into since there was no intention of the appellant to cause evasion and nothing in the show cause notice shows that elements of proviso to Section 11A were present to invoke extended period - The matter having been remitted as above, if any plea is made by appellant in respect of time bar, in the course of readjudication, such aspect is left open to the appellate authority to examine and outcome of his examination shall be recorded by the Authority and resolved - Appeal allowed by way of remand.

Summary

Issues Involved:
1. Determination of assessable value under Section 4 of the Central Excise Act, 1944.
2. Interpretation of "place of removal" and "transaction value" under different amendments.
3. Consideration of representative sale price versus solitary transaction price.
4. Examination of time-bar and penalty under Section 11A.

Issue-wise Detailed Analysis:

1. Determination of Assessable Value under Section 4 of the Central Excise Act, 1944:
The appellant's principal grievance is that the adjudications for the period from September 1997 to December 2001 ignored the law laid down in Section 4(1) of the Central Excise Act, 1944, which involves determining the assessable value based on the "normal price" at the "place of removal." The law underwent amendments during the periods in question, altering the definitions and processes for determining the assessable value.

2. Interpretation of "Place of Removal" and "Transaction Value" Under Different Amendments:
From 28.9.1996 to 30.6.2000, the "place of removal" included factories, warehouses, and depots, and the "normal price" was the price at which goods were ordinarily sold. From 1.7.2000 to 13.5.2003, the definitions were amended, and "transaction value" included any amount the buyer is liable to pay in connection with the sale. Post 14.5.2003, further amendments clarified that the price-cum-duty shall be the price actually paid for the goods. The appellant argued that the "normal sale price" at the place of removal should be the basis for determining the assessable value, not the price of a solitary transaction.

3. Consideration of Representative Sale Price Versus Solitary Transaction Price:
The appellant contended that the appellate authority wrongly adopted the price of a solitary transaction at a depot as the basis for determining the transaction value for all sales of that day. The law intended that the representative price at the time of removal from the respective place should be the assessable value. The impugned order failed to consider the amendments and the representative sale price prevailing at the time of removal.

4. Examination of Time-Bar and Penalty Under Section 11A:
The appellant also submitted that the time-bar aspect should be considered, as there was no intention to evade duty, and the show cause notice did not indicate elements to invoke the extended period under Section 11A. The appellate authority is directed to examine this aspect during re-adjudication and decide on the penalty accordingly.

Conclusion and Directions:
The appellate authority's order was found to have legal infirmities due to improper application of the law. Both sides are directed to present their case before the appellate authority, who shall hear them thoroughly and test the transactions based on the law in force during the relevant periods. The appellate authority is expected to pass a reasoned and speaking order by 31st March 2017. The six additional appeals involving different periods are also remanded for re-adjudication, with instructions to determine the "transaction value" considering normal sales transactions and resolving the dispute at the grassroots level. The appellate authority shall examine the material facts, consider the pleadings on fact and law, and apply the relevant law to pass an appropriate order.