2000 (7) TMI 175 - AT - Central Excise

Summary

Issues Involved:
1. Whether the import of raw materials without payment of customs duty under advanced intermediate licenses can be considered as additional consideration towards the value of the goods.
2. Inclusion of central excise duty and central sales tax in the assessable value.
3. Limitation for issuing the notice.
4. Imposition of penalty and confirmation of interest.

Summary:

Issue 1: Additional Consideration
The primary issue was whether the import of raw materials by the appellants without payment of customs duty, under advanced intermediate licenses issued in lieu of licenses surrendered by VSP, could be considered as additional consideration towards the value of the goods. The Tribunal held that benefits received under a statutory scheme cannot be considered as part of the total sale value. The Tribunal referenced several cases, including *Mazagon Dock Ltd. v. CCE* and *Universal Wires & Indus. v. CCE*, to support the view that such benefits are statutory and not additional consideration. The Tribunal concluded that the benefit derived under the DEEC scheme does not constitute additional consideration from VSP to the appellant.

Issue 2: Inclusion of Duties and Taxes
The Commissioner had included central excise duty and central sales tax in the assessable value, arguing that the appellant was entitled to a refund of terminal excise duty under the import policy. The Tribunal found this reasoning erroneous, stating that benefits under the import policy should not affect the determination of assessable value u/s 4 of the Central Excise Act, 1944, which mandates the deduction of excise duty and central sales tax paid by the appellants. Consequently, the demand for duty was deemed unsustainable.

Issue 3: Limitation
The appellant argued that the notice issued on 21-1-1997 for the period September 1993 to December 1995 was barred by limitation. The Commissioner had contended that the assessments were provisional and finalized only in 1996. The Tribunal did not express an opinion on this issue as the appeal was allowed on merits, rendering the limitation point academic.

Issue 4: Penalty and Interest
Given that the appeal was allowed on merits, the Tribunal found no justification for the imposition of a 100% mandatory penalty u/s 11AC or the confirmation of interest u/s 11AB. The impugned order was set aside, and the appeal was allowed with consequential relief to the appellants.