2023 (10) TMI 875 - AT - Central Excise

Valuation - liquidated damages paid or payable would form the part of the price of the cars for the purpose of payment of duty or not - Section 4(3)(d) of the Central Excise Act, 1944 - HELD THAT - The sum and substance of the decision in SKODA AUTO VOLKSWAGEN INDIA PRIVATE LTD VERSUS COMMISSIONER OF CENTRAL EXCISE AURANGABAD 2023 (2) TMI 658 - CESTAT MUMBAI is that in the event of rejection of the invoice value as transaction value, it is not open to the adjudicating authority to re-determine value without recourse to Central Excise (Determination of Price of Excisable Goods) Rules, 2000 and more particularly Rule 6 ibid. The issue involved herein is no more res integra and there are no reason to deviate from view taken by us in the aforesaid decision. From the case records it is clear that the said Rule has not been invoked either in the show cause notice or in the order under challenge. Therefore on this ground alone the impugned order is liable to be set aside. Appeal allowed.

Summary

Issues Involved:
1. Whether the liquidated damages paid by M/s. Skoda Auto India Pvt. Ltd. (SAIPL) to M/s. Volkswagen India Pvt. Ltd. (VWIPL) are part of the price of cars sold and liable to be included in the transaction value for the purpose of payment of duty.

Summary:

1. Nature of Liquidated Damages:
The core issue is whether the liquidated damages paid by SAIPL to VWIPL are part of the price of cars sold by VWIPL to SAIPL and thus should be included in the transaction value for the purpose of excise duty. The Commissioner of Central Excise, Pune-I, in the impugned order dated 08.10.2013, held that the liquidated damages are not penalties but part of the price of the cars sold.

2. Agreement Terms and Liquidated Damages:
The adjudicating authority found that the manufacture and sale of Fabia cars were governed by a Supplemental Agreement, which included a clause for liquidated damages under the heading "Price changes of vehicles to be sold by VWIPL to SAIPL." The agreement provided that if the actual volumes were lesser than the planned volumes, VWIPL would recover the remaining manufacturing costs as liquidated damages. The fixed cost per car was an agreed amount and part of the manufacturing costs. The authority concluded that liquidated damages were part of the price adjustment mechanism, not a penalty.

3. Tribunal's Review and Precedent:
The Tribunal reviewed the case records and submissions. The appellant cited a precedent where a similar issue was settled in favor of the appellant (Skoda Auto Volkswagen India Pvt. Ltd. vs. CCE; 2023(2) TMI 658-CESTAT MUMBAI). The Tribunal noted that the adjudicating authority had not invoked the Central Excise (Determination of Price of Excisable Goods) Rules, 2000, particularly Rule 6, which is essential for re-determining the value if the invoice value is rejected.

4. Tribunal's Decision:
The Tribunal concluded that the issue is no longer res integra and adhered to the view taken in the precedent case. Since Rule 6 was not invoked in the show cause notice or the impugned order, the Tribunal set aside the adjudicated demand, fines, and penalties. Consequently, the appeal filed by the appellant was allowed.

Conclusion:
The Tribunal ruled that the liquidated damages paid by SAIPL to VWIPL are not penalties but part of the price of the cars, and the adjudicating authority's failure to invoke Rule 6 of the Central Excise (Determination of Price of Excisable Goods) Rules, 2000, rendered the demand and penalties unsustainable. The appeal was allowed, and the impugned order was set aside.