2017 (6) TMI 943 - AT - Central Excise

Valuation - sale of goods from Factory Gate as well as from Depots - Revenue is of the view that as per Rule 7 of Central Excise Valuation Rules, 2000, the appellant is required to pay duty for the clearances made from depot at the depot price - Held that - a similar issue has come up before this Tribunal in the case of Tata Engineering and Locomotive 2005 (3) TMI 218 - CESTAT, NEW DELHI , wherein this Tribunal observed that the price of goods sold to dealers at the time of removal from the factory is available, then the Valuation rules will not be applicable to the facts of the case - Admittedly, in this case, the factory gate price is available, therefore, Valuation Rules are not applicable to the facts of this case - demand set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against duty demand on the charge of under valuation.

Analysis:
The appellant, a fertilizer manufacturer, appealed against a duty demand confirmed for under valuation during the period 01.04.2000 to 31.03.2003, when they sold goods from both the factory gate and depots. The Revenue contended that duty should be paid for clearances made from depots at the depot price under Rule 7 of Central Excise Valuation Rules, 2000, leading to the charge of under valuation. A show cause notice was issued on 25.05.2005, demanding differential duty on depot clearances, which was confirmed post-adjudication along with interest and penalty.

The appellant's counsel argued that during the relevant period, two Valuation Rules were applicable, and they were liable to pay duty under Section 4(1)(a) of the Central Excise Act for sales to independent buyers at transaction value, including goods cleared from depots. It was emphasized that duty under Section 4(1)(b) was not applicable as goods were sold from the factory gate. The counsel contended that the show cause notice invoking the extended period of limitation was unsustainable, citing precedents like Commissioner Vs. Tata Engineering and Locomotive and Roots Multiclean Limited Vs. CCE, Coimbatore.

On the contrary, the Revenue's representative argued that as the appellant sold goods from depots at the depot price, they were obligated to pay duty under Rule 7 of Valuation Rules based on the sale price from depots. After hearing both sides, the Tribunal observed that the appellant sold goods to independent buyers from the factory gate and depots, and the issue was whether duty should be paid on the depot sale price. Referring to a previous case involving Tata Engineering and Locomotive, where it was held that if the factory gate price was available, Valuation Rules would not apply, the Tribunal concluded that as the factory gate price was known in this case, Valuation Rules were inapplicable. Consequently, the demand for duty, interest, and penalty was deemed unsustainable, leading to the setting aside of the impugned order and allowing the appeal with any consequential relief.

In conclusion, the Tribunal's decision was based on the inapplicability of Valuation Rules due to the availability of the factory gate price, leading to the setting aside of the demand for duty, interest, and penalty against the appellant.