2000 (8) TMI 471 - AT - Central Excise

Summary

Issues: Allegation of interest on advances in relation to assessable value calculation; Requirement of establishing nexus between advances taken and assessable value; Responsibility of department to show nexus; Stage at which nexus needs to be established; Sufficiency of submissions by assessee to discharge onus.

In this case, four applications were considered by the Appellate Tribunal CEGAT, Mumbai, relating to appeals against the same Order-in-Appeal. The issue at hand was the inclusion of interest on advances in the assessable value for duty calculation. The show cause notices alleged that interest on advances at a rate of 25% needed to be added to the assessable value. The Dy. Commissioner confirmed the demand in each case, and the Commissioner (Appeals) upheld these findings.

Substantial case laws and the Board's instruction were cited before the Commissioner (Appeals), emphasizing the necessity for the department to establish a direct nexus between the advances taken and any corresponding depression in the assessable value of the product offered to the buyer. However, the show cause notices failed to demonstrate this required nexus. The Dy. Commissioner and the Commissioner (Appeals) both bypassed the directive by suggesting an indirect nexus or stating that the nexus principle does not apply to tailor-made goods.

The responsibility of proving the nexus lies with the department, regardless of whether the goods are tailor-made or general purpose. The Tribunal noted that the nexus must be established at the stage when the assessee is called upon to pay, i.e., at the show cause notice stage. If the notice does not allege a nexus with specific details, the assessee cannot adequately respond. The Tribunal found that the submissions made by the assessee were not considered sufficient by the departmental authorities to discharge the onus, especially since the allegations required in the show cause notice cannot be introduced later, including at the appellate stage.

Based on these observations, the Tribunal found a prima facie case in favor of the applicants and granted unconditional waiver and stay of the sums confirmed in the impugned order.