2018 (9) TMI 1572 - AT - Central Excise

Valuation - goods in the Malkapur unit of the appellant - Inclusion of certain costs - principles of natural justice - appellant argues that they have been denied the principles of natural justice in not being provided with the copy of report of Director (cost) - Scope of SCN - new grounds raised in SCN - Held that - It is a well established principle that the day the show cause notice was issued, the clock stops and only the allegations made in the show cause notice and only the documents which were relied upon in the show cause notice can be considered for subsequent adjudication proceedings. It is not open for the department to add additional documents which, in this case the learned Commissioner has correctly not done - As far as the report by M/s SSZ is concerned, it was also not relied upon document but it was used as defence by the appellant before the adjudicating authority and for the reasons recorded therein, he did not agree with the same. Revenue neutrality - Held that - The demand is on duty short paid or not paid which is a consolidated exercise. In this case, since the department has opted to rely on the cost audit report of DPA, they should do so fully recalculating the duty payable on all clearances during the period. The figures submitted by the learned counsel would show that such a calculation would eliminate the demand because they have paid in excess of what would have been payable - the demand in respect of their Malkapur unit does not survive as far as the question of under-valuation is concerned. The demands in respect of the Jeedimetla and Balanagar units follow from the demand in Malkapur unit and hence will not survive either. CENVAT credit on rejected material - Held that - There is nothing on record to show that the material had not entered the factory of manufacturer or have not been taken into production process. This being a part of quality control of manufacture of final products, they are entitled to the credit on the rejected inputs. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Valuation method for captive consumption.
2. Inclusion of royalty and technical know-how fees in cost calculation.
3. Accuracy and reliability of cost audit reports.
4. Application of revenue neutrality.
5. Entitlement to CENVAT credit on rejected materials.
6. Extended period of limitation.
7. Imposition of penalties on individuals.

Issue-wise Detailed Analysis:

1. Valuation Method for Captive Consumption:
The appellant adopted valuation under Rule 8 of Central Excise Valuation Rules for captive consumption, transferring goods between their units. The department contended that the valuation did not include royalty, technical know-how fees, and 15% notional profit, leading to undervaluation.

2. Inclusion of Royalty and Technical Know-how Fees in Cost Calculation:
The department's officers found that the appellant's cost sheets excluded royalty and technical know-how fees paid to their Spanish parent company. The appellant's cost accountant retrofitted the same values even after including these elements, raising suspicion of manipulation. The department appointed M/s DZR (Cost Accountants) to verify the costs, leading to a show cause notice for duty short payment.

3. Accuracy and Reliability of Cost Audit Reports:
Three different cost audit reports were presented: one by the appellant’s cost accountant (DPA), one by the department-appointed DZR, and another by SSZ, commissioned by the appellant, which claimed both previous reports were incorrect. The Commissioner relied on DZR's report, dismissing SSZ's report as provisional and incorrect in capacity utilization.

4. Application of Revenue Neutrality:
The appellant argued that any excess duty paid at one unit would be creditable at another, making the exercise revenue-neutral. The Commissioner and the department contended that revenue neutrality does not negate statutory compliance and cannot be a blanket defense against duty evasion. The Tribunal agreed that revenue neutrality must be carefully considered and is not a blanket application to nullify statutory provisions.

5. Entitlement to CENVAT Credit on Rejected Materials:
The appellant claimed credit on rejected materials, arguing that these were part of the manufacturing process. The Tribunal found no evidence that the materials did not enter the factory or were not used in production, thus entitling the appellant to the credit.

6. Extended Period of Limitation:
The department invoked the extended period of limitation, alleging suppression of facts. The appellant argued that due to revenue neutrality, there was no intent to evade duty. The Tribunal noted that revenue neutrality could be a factor in determining intent but upheld the department's stance on the extended period.

7. Imposition of Penalties on Individuals:
Penalties were imposed on individuals for allegedly failing to guide the unit and misleading the department. The Tribunal found no evidence of personal and physical involvement in the removal and transportation of goods, thus setting aside the penalties.

Conclusion:
The Tribunal found that the demand in the Malkapur unit did not survive as it did not fully consider the cost audit report by DPA, which showed net excess payment. Consequently, demands in Jeedimetla and Balanagar units also did not survive. The Tribunal allowed the appeals, set aside the impugned orders, and ruled that interest and penalties did not survive.

Final Order:
The appeals were allowed, and the impugned orders were set aside.

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