2019 (1) TMI 1422 - AT - Central Excise

Valuation - inclusion of value of BFC in the assessable value of the Electrodes - no suppression of facts - extended period of limitation - scope of SCN - Held that - The first appellate authority has not recorded proper reasons on the one hand, the first appellate authority holds that the adjudicating authority having not decided the classification, the Show Cause Notice as well as the Order-in-Original are not sustainable; on the other hand, allows the appropriation of the duty paid by the assessee voluntarily; which appear to be contradicting each other. Only when there is a liability towards duty can the authorities order for appropriation. The matter requires re-adjudication by the adjudicating authority who shall pass a fresh Order after affording reasonable opportunities to the assessee, for which reason the impugned Order is set aside - appeal allowed by way of remand.

Summary

Issues:
Challenging findings of Commissioner of Central Excise, Excisability of 'Earthing Electrodes', Inclusion of Back Filling Compound (BFC) in assessable value, Allegation of intention to evade payment of duty, Barred by limitation, Proper reasoning in the impugned order.

Analysis:

1. Challenging findings of Commissioner of Central Excise:
The Revenue appealed against the Commissioner's findings regarding the manufacture and clearance of 'Earthing Electrodes'. The Revenue argued that the product's excisability was evident as the appellant transferred assets to a new company, obtained Central Excise Registration, and started paying duty for the same product. The Additional Commissioner's Order-in-Original supported this claim, emphasizing the voluntary deposit of duty by the appellant as proof of excisability. The Tribunal found the Commissioner's reliance on the appellant's later defense unjustifiable.

2. Excisability of 'Earthing Electrodes' and Back Filling Compound (BFC):
The Revenue contended that the value of BFC should be included in the assessable value of the Electrodes. The Tribunal noted that the first appellate authority failed to provide reasons for excluding the value of BFC. The appellant's representative argued in support of the Commissioner's findings, emphasizing the absence of intent to evade duty and the belief in exemption eligibility until a specific limit. The Tribunal highlighted the lack of a specific allegation of intention to evade duty in the Show Cause Notice, citing relevant case-law.

3. Allegation of intention to evade payment of duty and Limitation:
The appellant's representative argued that without a specific allegation of intent to evade duty, the extended period of limitation could not be invoked. The Tribunal acknowledged the need for proper reasoning in the impugned order, noting contradictions in the first appellate authority's decisions regarding classification and duty payment appropriation. The Tribunal set aside the impugned order, directing re-adjudication by the adjudicating authority without influence from the first appellate authority's findings.

4. Proper reasoning in the impugned order:
The Tribunal found the first appellate authority's reasoning inadequate, especially regarding the classification issue and duty payment appropriation. The Tribunal emphasized that liability towards duty is necessary for authorities to order appropriation. Consequently, the matter was remanded for re-adjudication, leaving all issues open for further examination by the adjudicating authority.

In conclusion, the Tribunal allowed the appeals and cross-objection for statistical purposes, emphasizing the need for a fresh order based on proper reasoning and affording reasonable opportunities to the assessee.