2007 (11) TMI 114 - AT - Central Excise

Goods in question were sold to a related buyer holding-company who captively consumed the goods for further manufacture of excisable goods - case where related buyer doesn t sell the goods but consumes it in the manufacture of other goods is covered by the proviso to Rule 9 - By virtue of this proviso, Rule 8 gets attracted & accordingly the A.V. shall be 115% of the cost of production of the goods - Rule 11 (price actually charged to the related buyer) not applicable for valuation

Summary

Issues:
- Appeal against demand of differential duty on goods cleared to holding-company
- Assessment of assessable value under Rule 8 of Central Excise (Valuation) Rules, 2000
- Application of Rule 11 of Valuation Rules based on price charged to related buyer
- Interpretation of transaction value under Section 4(1)(a) of Central Excise Act
- Applicability of Rule 8 or Rule 11 to determine assessable value in case of goods sold to related buyer
- Proviso to Rule 9 for goods consumed in manufacture by related person

Analysis:
The appeal was filed against a demand for differential duty on goods cleared to a holding-company. The assessee had paid duty based on the assessable value determined under Rule 8 of the Central Excise (Valuation) Rules, 2000. However, the department contended that the assessable value, set at 115% of the cost of production, was lower than the price charged to the buyer. Consequently, a show-cause notice was issued, leading to a confirmed demand and penalty by the original authority, which was upheld by the Commissioner (Appeals), prompting the current appeal.

Upon hearing both sides, it was observed that the lower authorities applied Rule 11 of the Valuation Rules, considering the price charged to the related buyer as the assessable value. The Revenue argued that the agreement between the assessee and the buyer had a commercial basis, making the agreed value the transaction value under Section 4(1)(a) of the Central Excise Act. However, the assessee's consultant cited the Board's Circular and a Tribunal decision to support the applicability of Section 4(1)(b) instead. The relationship between the assessee and the buyer ruled out the transaction value concept, making Section 4(1)(b) relevant. The key issue was whether Rule 8, as relied on by the assessee, or Rule 11, as applied by the lower authorities, should govern the case.

In cases where goods are consumed in manufacture by a related person, the proviso to Rule 9 stipulates that Rule 8 should determine the value. Consequently, Rule 8, setting the assessable value at 115% of the cost of production, was deemed applicable in this scenario. As the appellants had already paid duty based on this value, no additional duty was deemed recoverable. Therefore, the impugned order was set aside, and the appeal was allowed in favor of the appellants, with consequential reliefs granted.