2018 (11) TMI 1202 - AT - Central Excise

Undervaluation - short payment of duty - cost of lignite extraction - contravention of provisions of Section 4 of Central Excise Act, 1944 read with Rules 4, 6 8 of Central Excise Rules, 2002 - whether the transaction value of the lignite extracted and supplied by the appellant shall be the petitioned price as alleged by the Department or the adhoc price as is prayed by the appellant? Held that - The Commission as constituted under the Electricity Act, 2003 shall determine the tariff of a generating company under a multi-year tariff framework for each financial year in furtherance of the petition alongwith the requested documents as mentioned therein by the generating company. The Rule permits the generating company for filing for provisional determination of transfer price at mine-mouth before taking up mining. Such provisional determination is mentioned to be the guiding factor for determination of final transfer price which has to be determined after a lengthy and time-taking procedure to be followed by the Commission in furtherance of Regulation 13 thereof. The transaction value is the price actually paid or payable for the goods. The price actually paid in the present case is adhoc/ interim price and the price payable would be the price as would be finally fixed by RERC - Ld. Commissioner Adjudication has gone wrong while still considering the petitioned price to be the transaction value for the lignite supplied by the appellant. Otherwise also, since the price could only be fixed by RERC, an appointed authority under Electricity Act, 2003, once petitioned price has not been approved by this authority, the appellant has no right to recover the same from RWPL - the petitioned price cannot be categorised as price actually payable. Hence, is wrongly considered as the transaction value. Extended period of limitation - Held that - There is no suppression of facts on part of the appellant. The question of intent to evade tax has no relevance in the given facts and circumstances. Ld. Commissioner Adjudication is therefore opined to have been wrong while permitting the Department for invoking the extended period of limitation for issuing the impugned Show Cause Notice - extended period cannot be invoked. The demand of excise duty is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against under-valuation of goods for Central Excise duty.

Analysis:
The appellant, a mining company, supplied lignite to a power generation company based on provisional prices determined by the Regulatory Authority. The Department alleged under-valuation of goods, leading to a demand of Central Excise duty. The appellant argued for provisional assessment based on adhoc prices, as final prices were pending determination by the Regulatory Authority. The Department insisted on petitioned prices as transaction value, leading to the dispute.

The Tribunal analyzed the agreements and submissions, noting the appellant's request for provisional assessment based on adhoc prices. The Regulatory Authority had not finalized prices from 2011 to 2016. The Tribunal examined the definition of transaction value under the Central Excise Act, emphasizing that the price actually paid or payable should be considered. As final prices were pending determination, the petitioned prices could not be deemed as transaction value.

The Tribunal found the Show Cause Notice premature, as the appellant had paid duty based on adhoc prices and final values were unavailable. There was no intent to evade tax, as the appellant had communicated all facts to the Department. The Tribunal referred to precedents to support the decision. Consequently, the demand for excise duty was deemed unsustainable, and the Order was set aside in favor of the appellant.

In conclusion, the Tribunal ruled in favor of the appellant, highlighting the correct discharge of liability based on adhoc prices. The decision emphasized that the petitioned prices could not be considered transaction value due to pending final price determinations. The Order under challenge was overturned, and the appeal was allowed.