2005 (11) TMI 153 - AT - Central Excise

Summary

Issues Involved:
1. Provisional vs. Final Assessment
2. Alleged Evasion of Excise Duty
3. Raising of Two Sets of Invoices
4. Inclusion of Post-Manufacturing Charges in Assessable Value
5. Suppression of Material Facts

Issue-wise Detailed Analysis:

1. Provisional vs. Final Assessment:
The appellants argued that the assessments continued to be provisional and thus the show cause notice was premature. The Tribunal found that no final assessment order under Rule 9B(5) was made by the Assistant Commissioner. The order dated 10-3-97 only approved the final price lists for a limited period and directed the finalization of assessments for the pending periods. The endorsements on RT-12 returns by the Superintendent, which purported to finalize assessments based on the Assistant Commissioner's order, were erroneous. The Tribunal concluded that the assessments remained provisional for the period in question, and the show cause notice was premature.

2. Alleged Evasion of Excise Duty:
The Revenue alleged that the appellant evaded excise duty by raising two sets of invoices: excise invoices with lower values and commercial invoices with actual realization amounts. The Tribunal noted that the consolidated commercial invoices included items not manufactured at the Palakkad factory and were raised for the convenience of the customers (DOT/MTNL). The Tribunal found that the Commissioner erroneously assumed that the entire amount of the consolidated commercial invoices was subject to excise duty, without considering the terms of the contract and the nature of the items included in the invoices.

3. Raising of Two Sets of Invoices:
The Tribunal found that the appellant had informed the department about the practice of raising consolidated commercial invoices for the convenience of their customers. The consolidated invoices included supplies from other units and "bought out" items. The Tribunal concluded that the appellant did not suppress material facts from the department and that the procedure of raising consolidated commercial invoices was fully intimated and not objected to by the department.

4. Inclusion of Post-Manufacturing Charges in Assessable Value:
The Commissioner included post-manufacturing charges such as installation and commissioning in the assessable value. The Tribunal noted that the contract included incidental services that were not related to the manufacturing process and could be charged separately. The Tribunal held that these charges were not includible in the assessable value of the goods cleared from the Palakkad factory.

5. Suppression of Material Facts:
The Commissioner concluded that the appellant suppressed material facts about the actual realization amounts. The Tribunal found that the appellant had consistently informed the department about the consolidated commercial invoices and the nature of the items included. The Tribunal held that the adverse inference drawn by the Commissioner was unwarranted.

Final Order:
All appeals were allowed, and the impugned order of the Commissioner was set aside. The Tribunal directed the final assessments to be made under Rule 9B(5) for the period covered by the show cause notice, in accordance with the law and the observations made in the judgment. The deposit of Rs. 1 crore made by the assessee was to be retained by the Revenue and adjusted as per the outcome of the final assessment.