2005 (9) TMI 193 - AT - Central Excise

Issues Involved:
1. Determination of assessable values for excisable goods (CDs).
2. Inclusion of various costs (e.g., copyright of DAT master, positive art work, inlay costs, jewel box for packing) in the valuation of CDs.
3. Validity of show cause notices and demands based on comparable prices.
4. Application of the Apex Court decision in Ujagar Prints and other relevant case laws.
5. Bar of limitation in issuing show cause notices.
6. Imposition of penalties on the assessee and its directors and officers.

Issue-wise Detailed Analysis:

1. Determination of Assessable Values:
The primary issue was whether the various costs such as copyright of DAT master, positive art work, inlay costs, and jewel box for packing should be included in the valuation of CDs for determining the duty to be paid. The Tribunal held that the valuation of CDs should be based on the cost of manufacture as per the Ujagar Prints formula, which includes the cost of raw materials and processing charges, but not the sale price of the music companies (traders). The Tribunal emphasized that the intellectual property costs of music directors, singers, and other artists are not comparable across different music companies, thus making the sale price of one company (e.g., Zee Music) inapplicable for valuation purposes.

2. Inclusion of Various Costs:
The Tribunal found that the costs related to DAT, positive art work, inlay cards, and jewel boxes provided by the music companies should not be included in the assessable value of the CDs. It was noted that the cost of the stamper (made from the DAT) should be amortized and included in the valuation, but not the cost of the DAT itself. The Tribunal also highlighted that the Commissioner (Appeals) had previously ruled in favor of the assessee, stating that the relationship between the job worker (assessee) and the music companies was on a principal-to-principal basis, not principal-to-agent, thus aligning with the Ujagar Prints decision.

3. Validity of Show Cause Notices and Demands:
The Tribunal dismissed the show cause notices and demands based on the comparable price of Rs. 140/- per CD accepted by Zee Music, stating that the price of a trader cannot be used for valuation under Central Excise for job-worked goods. The Tribunal found that the notices were issued based on factually incorrect data and that the department had failed to conduct a proper inquiry to obtain the necessary information for accurate valuation.

4. Application of Apex Court Decision in Ujagar Prints:
The Tribunal reiterated the mandate of the Constitutional Bench of the Apex Court in Ujagar Prints, which prohibits the adoption of the trader's sale price for goods manufactured on job work. The Tribunal found that the Deputy Commissioner's order, which traversed beyond the charges in the show cause notice, was in violation of the law laid down by the Apex Court and the Board's instructions on job work valuation.

5. Bar of Limitation:
The Tribunal upheld the assessee's contention regarding the bar of limitation, citing the Apex Court's decisions in Hyderabad Polymers Pvt. Ltd. and ECE Industries Ltd. The Tribunal noted that the assessee had filed declarations and informed the department about the inclusion of costs under protest, indicating no suppression of facts. Consequently, the extended period of limitation under Section 11A(1) could not be invoked.

6. Imposition of Penalties:
Given the findings on the merits and the bar of limitation, the Tribunal found no justification for imposing penalties on the assessee and its directors and officers. The Tribunal set aside the penalties, emphasizing that the department's failure to conduct a proper inquiry and the incorrect application of valuation principles did not warrant penal action.

Conclusion:
The Tribunal dismissed the appeal filed by the Revenue (Appeal No. E/1823/01) and disposed of the cross-objection (CO No. 148/01) accordingly. The appeals filed by the assessee and their directors and officers (Appeals Nos. E/56 to 59/04) were allowed, and the impugned order was set aside. The Tribunal's decision was based on the correct application of the Ujagar Prints decision, the factual inaccuracies in the department's valuation method, and the bar of limitation.

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