2018 (6) TMI 981 - AT - Central Excise

Waiver of penalty - the penalty imposed by the adjudicating authority was set aside on the ground that the case involved technical issue of interpretation of the provision of Section 4A or Section 4 of the Central Excise Act, 1944 - Held that - Since in the present case transaction value is available therefore the value is correctly determined under Section 4(1)(a). The respondent sold their goods to their buyers on transaction value therefore, pro-rata basis cannot be applied accordingly the demand raised by Revenue does not sustain. The issue has been considered by the Tribunal in the case of Commissioner of Central Excise, Goa v. Cosme Remedies Ltd. 2016 (4) TMI 323 - CESTAT MUMBAI , where it was held that Since there is a transaction value available at which the goods are sold by the assessee to the distributors, and the same has not been challenged, the same should be assessable value under Section 4(1)(a) of the Central Excise Act. The demand does not sustain - appeal dismissed - decided against Revenue.

Summary

Issues:
Challenge to dropping of penalty by Commissioner (Appeals) and merit of the case regarding the demand of duty confirmed.

Analysis:
The Revenue filed an appeal to challenge the dropping of penalty by the Commissioner (Appeals) and the respondent filed a Cross Objection challenging the demand of duty confirmed. The dispute arose when the appellant cleared physician samples during a specific period by determining the value based on the cost of 100% and paying Central Excise duty. The department contended that the value should have been determined on a pro-rata basis, alleging under-valuation resulting in a short levy of duty. A show-cause notice was issued, and the demand was confirmed by the adjudicating authority. The Commissioner (Appeals) upheld the demand of duty but set aside the penalty, citing a technical issue of interpretation of provisions. The Revenue appealed to uphold the penalty, while the respondent challenged the correctness of the value determined by them.

The Revenue argued that the penalty should not have been dropped as there was a suppression of fact by the appellant, invoking the extended period. Citing a Supreme Court case, it was contended that the Commissioner (Appeals) had no power to drop the penalty under Section 11AC of the Central Excise Act, 1944. On the other hand, the respondent contended that they manufactured physician samples for buyers on a contract sale price basis and the buyers distributed the samples freely, emphasizing a principle-to-principle transaction. They argued that valuation on a pro-rata basis was not applicable as the transaction value was available under Section 4(1)(a) of the Act.

The Tribunal analyzed the submissions and found that the appellants sold physician samples on a sale basis to the brand name owner, making the sale price available for valuation. As the transaction value was available, the valuation had to be determined under Section 4(1)(a) of the Act, and pro-rata basis could only be applied when the transaction value was not available. Referring to a previous case, the Tribunal held that the demand did not sustain as the goods were sold at transaction value, and pro-rata basis was not applicable. Consequently, the impugned order was set aside, the Cross Objection was allowed, and the Revenue's appeal was dismissed. As the demand was not sustainable, the question of penalty did not arise, leading to the dismissal of Revenue's appeal.

In conclusion, the Tribunal ruled in favor of the respondent, emphasizing the availability of transaction value for valuation and rejecting the application of pro-rata basis. The judgment highlighted the importance of transaction value under Section 4(1)(a) of the Central Excise Act, 1944 in determining the correct valuation of goods sold.