2019 (5) TMI 1284 - AT - Central Excise

Valuation - clearances to sister units - cost of production arrived by taking 16.96% of the material cost as shown in the invoices for the goods cleared - Rule 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - HELD THAT - The demand of duty is calculated on the basis of cost of production arrived after taking 16.96% of the value of goods cleared as the material cost. There is no provision in the Valuation Rules to arrive at such valuation of materials on such basis. Assessee has not produced CAS-4 certificate. It is the bounden duty of the department to appoint a Cost Accountant and obtain a CAS-4 certificate. The valuation has then to be done on the basis of CAS-4 certificate. Time limitation - revenue neutrality - HELD THAT - The entire issue is revenue neutral. The appellant would be eligible for credit for the duty paid on the goods i.e., cleared to their sister Units. The Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY VERSUS M/S. ANGLO FRENCH TEXTILES 2018 (8) TMI 896 - SC ORDER had decided that in the case of revenue neutral situation, the demand cannot sustain. The duty demand is not based on provisions of law, and the demand cannot sustain - appeal allowed - decided in favor of appellant.

Summary

Issues: Valuation of goods for excise duty determination, requirement of CAS-4 certificate, revenue neutrality, limitation period for issuing show-cause notice.

Valuation of Goods for Excise Duty Determination:
The judgment revolves around the valuation of goods for excise duty determination, specifically focusing on the requirement of a CAS-4 certificate. The appellants, engaged in manufacturing Diesel Generating sets, cleared goods to sister units without determining the value as per Rule 8 of Central Excise Valuation Rules. The department issued a show-cause notice for demanding differential duty, which was confirmed by the original authority and upheld by the Commissioner (Appeals). The appellant argued that CAS-4 certificate was not necessary for determining the assessable value, citing a previous Tribunal order in their favor. The department, however, justified the valuation based on material cost from invoices. The Tribunal noted that the valuation method lacked legal basis and set aside the demand, emphasizing the necessity of a CAS-4 certificate for accurate valuation.

Requirement of CAS-4 Certificate:
The judgment delves into the significance of the CAS-4 certificate in determining the cost of production for excise duty valuation. The appellant contended that the department's valuation based on invoice prices without a CAS-4 certificate was arbitrary. The Tribunal emphasized the importance of the CAS-4 certificate in arriving at the assessable value, highlighting that the department should have appointed a Cost Accountant for this purpose. The absence of a CAS-4 certificate led to an incorrect valuation method, ultimately resulting in the demand being set aside due to the lack of legal foundation.

Revenue Neutrality:
Another crucial aspect addressed in the judgment is the concept of revenue neutrality in excise duty demands. The Tribunal referred to a previous decision where it was established that in revenue-neutral situations, the demand for duty is unsustainable. Citing relevant case laws and decisions, the Tribunal concluded that the issue at hand was revenue neutral, as the appellant would be eligible for duty credit on goods cleared to sister units. This aspect, along with the lack of legal basis for the duty demand, contributed to the appeal being allowed on the grounds of revenue neutrality.

Limitation Period for Issuing Show-Cause Notice:
The judgment also touches upon the limitation period for issuing a show-cause notice in excise duty matters. Despite the issue being under correspondence since 2004, the show-cause notice was issued in 2007, almost three years later. The Tribunal noted that the delay in issuing the notice, coupled with the questionable valuation methodology, further weakened the department's case. The appeal was allowed on technical grounds of revenue neutrality and limitation, without delving into the merits of the matter, highlighting the procedural lapses in the department's actions.