2008 (8) TMI 331 - AT - Central Excise

Valuation place of removal is consignment agent goods removed from factory to depot thereafter depot to consignment agent - The value is always determined at the time of removal from the factory on the basis of price prevailing in the depot. From the depot, if the goods go to the consignment agent, one need not bother about the price at which the consignment agent sells them. It is not the case of the Department that as a scheme, the appellants have been removing the goods to their own warehouse and subsequently removing the duty paid excisable goods from the warehouse to the consignment agents. The stock transfer from the warehouse to the consignment agents are in the course of business - There is no need for chasing the goods to determine the value demand is not sustainable.

Issues:
1. Interpretation of excise duty payment based on price prevailing at different stages of goods transfer.
2. Allegation of duty evasion due to goods being sold at higher prices by consignment agents.
3. Application of Section 4 in determining excise duty liability.
4. Justification for demanding differential duty based on consignment agents' selling price.

Issue 1: Interpretation of excise duty payment based on price prevailing at different stages of goods transfer
The judgment revolves around the issue of excise duty payment concerning the sale of 'Coated Abrasives' and 'Bonded Abrasives' by the appellants. The Revenue alleged that the appellants were selling goods to consignment agents at higher prices than those paid at the time of factory clearance, leading to duty evasion. The Department contended that the price at which consignment agents sell the goods should be considered for duty calculation. However, the appellants argued that duty should be paid based on the price prevailing at the depot at the time of removal from the factory, not at the consignment agent's selling price. The Tribunal found that the appellants were following the correct procedure by paying duty based on the depot price, regardless of the consignment agents' selling price.

Issue 2: Allegation of duty evasion due to goods being sold at higher prices by consignment agents
The Department alleged duty evasion by the appellants due to consignment agents selling goods at higher prices than the factory clearance price. The lower authority confirmed the demand and imposed penalties, citing suppression of facts. However, the Tribunal disagreed with this assessment, stating that the appellants were not directly sending goods to consignment agents on a stock transfer basis. Instead, goods were sent to the depot first and then sold to consignment agents. The Tribunal ruled that duty payment based on the depot price at the time of factory clearance was in accordance with the law, and there was no justification for demanding differential duty based on consignment agents' selling prices.

Issue 3: Application of Section 4 in determining excise duty liability
The judgment analyzed the application of Section 4 in determining excise duty liability for the goods in question. The Tribunal emphasized that duty payment should be based on the price prevailing at the depot at the time of removal from the factory to the depot. The appellants' method of paying duty according to the depot price was deemed correct and lawful. The Tribunal clarified that the value of goods should be determined at the time of removal from the factory, irrespective of subsequent sales by consignment agents. The Tribunal highlighted that the appellants' stock transfers to consignment agents were minimal and conducted in the course of business, affirming the correctness of the appellants' duty payment procedure.

Issue 4: Justification for demanding differential duty based on consignment agents' selling price
The Department's contention that duty should be calculated based on consignment agents' selling prices was rejected by the Tribunal. The Tribunal emphasized that duty payment should be determined at the time of removal from the factory based on the depot price, as per Section 4. The Tribunal found no merit in demanding differential duty due to consignment agents selling goods at higher prices. The judgment concluded that the appellants had been following the correct procedure, and there was no justification for imposing additional duty based on consignment agents' selling prices. As a result, the impugned order was set aside, and the appeal was allowed with consequential relief.

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