2019 (4) TMI 1407 - AT - Central Excise

Valuation - clearances of goods manufactured in BSNL Telecom Factories and cleared to various BSNL Telecom Circles - Department was of the view that valuation was required to be adopted with reference to Challaning Rate but on the basis of value of materials within the current year when the goods were cleared - period 2003-04 to 2006-07 - HELD THAT - Since no sale involved, this dispute has been decided by the Tribunal in the case of BSNL s earlier case BSNL VERSUS COMMISSIONER OF C. EX., HALDIA 2007 (2) TMI 97 - CESTAT, KOLKATA in the year 2007. CESTAT, in that case, has taken the view that there is no requirement to add notional profit of 10%/15% and that the valuation may be decided under Rule 11 by adopting Challaning Rate - Keeping such decision of the Tribunal in view, it appears that the valuations during the disputed period in this case, are also to be done on the basis of Challaning Rate. It is prayed that payment in excess may be allowed to be adjusted towards short payment in many other cases. We also find that such request is also fair and equitable - matter remanded to the adjudicating authority for the purpose of re-calculation of the demand after allowing adjustment towards the excise duty excess paid. If any differential duty is to be paid by BSNL, the same may be recovered from BSNL - penalty set aside. Appeal allowed by way of remand.

Summary

Issues:
Valuation of goods cleared from BSNL Telecom Factories to various BSNL Telecom Circles based on Central Excise Valuation Rules, 2000. Dispute regarding the adoption of Challaning Rate for valuation. Adjustment of excess duty paid with short paid duty by BSNL. Imposition of penalty on BSNL.

Valuation Dispute:
The appeals were against Orders-in-Original related to the valuation of goods cleared from BSNL Telecom Factories to BSNL Telecom Circles. The goods were cleared on payment of Central Excise duty based on Rule 8 of the Central Excise Valuation Rules, 2000. The dispute arose regarding the adoption of Challaning Rate for valuation. The Department argued for valuing goods based on the cost of materials for the current year when the goods were cleared. CESTAT's earlier decision in a similar case held that valuation should be done under Rule 11 by adopting Challaning Rate without adding notional profit. The Tribunal agreed that valuation should be based on the Challaning Rate of the current year, allowing adjustments for excess duty paid towards short paid duty.

Adjustment of Excess Duty:
BSNL had already paid the differential duty after re-calculating the value of goods cleared using Challaning Rate for respective years. The Department objected to BSNL's request to adjust excess duty paid with short paid duty, stating that such adjustments are typically allowed for provisional assessments. However, CESTAT found BSNL's request fair and equitable, allowing for the adjustment of excess duty towards short paid duty. The Tribunal remanded the matter to the adjudicating authority for re-calculation of the demand after allowing such adjustments.

Penalty Imposition:
The Tribunal found no reason for imposing any penalty on BSNL and set aside the imposition of penalties. Both appeals were allowed by way of remand, with cross objections also being disposed of. The matter was remanded for re-calculation of the demand after adjusting excess duty paid, with any remaining differential duty to be recovered from BSNL.

This comprehensive analysis of the judgment highlights the key issues involved, the arguments presented by both parties, and the Tribunal's decision on each issue, ensuring a detailed understanding of the legal reasoning and outcomes of the case.