2018 (10) TMI 636 - AT - Central Excise

Valuation - related person or not - Revenue s allegation is based on the assertion that the whole capital of M/s. Tubes was contributed by the family members of Shri Kapil Dabharia and that he is also the proprietor of M/s. K.R. Metals - Rule 11 of Central Excise (Valuation Determination of Price of Excisable Goods) Rules, 2000. Held that - Only the specified persons are the qualified to be relative - In the instant case, while the appellant-assessee is a proprietorship concern and M/s. Tubas is a Private Limited company. The Section 6 of the Companies Act, 1956 would not cover such a situation. In these circumstances, the basic charge in the show cause notice fails and thus, the demand made on the basis of this charge cannot be sustained. Moreover, it is seen that even if two are held to be related, in terms of the decision of Hon'ble Apex Court in the case of SACI Allied Products Limited vs. CCE 2005 (4) TMI 65 - SUPREME COURT OF INDIA , the value to be adopted should be of the goods cleared to same class of buyers - In the instant case, M/s. Tubas is buying substantial quantity of the total sale of the appellant. Since M/s. Tubas is buying 20/30% of the appellant s production, the price to any independent buyer of similar quantity only can be adopted under Rule 11 of the Central Excise (Valuation Determination of Price of Excisable Goods) Rules, 2000. On this count also, the demand dose not survive as the price adopted does not related to similar class of buyer. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Confirmation of demand of excise duty and imposition of penalty based on related person allegation.

Analysis:
The appeal was filed against the confirmation of demand of excise duty and penalty imposition by M/s. K.R. Metals. The Revenue issued a show cause notice alleging M/s. Tubas as a related person, based on the assertion that the whole capital of M/s. Tubas was contributed by the family members of the proprietor of M/s. K.R. Metals. The show cause notice examined Rule 9, 10, and 11 of Central Excise (Valuation Determination of Price of Excisable Goods) Rules, 2000. The demand was confirmed by lower authorities, leading the appellant to approach the Tribunal.

The appellant argued that M/s. Tubas, being a Private Limited company, and M/s. K.R. Metals, a proprietorship firm, could not be considered related persons under relevant acts. They contended that the transactions were on a principal-to-principal basis, with M/s. Tubas enjoying quantity discounts due to substantial purchases. The difference in prices between M/s. Tubas and other buyers was attributed to the quantity purchased, with comparable prices being charged to independent buyers. The appellant relied on the SACI Allied Products Limited case to support their argument.

The Revenue, on the other hand, argued that the appellant and M/s. Tubas being family members indicated mutual interest in each other's businesses, justifying the adoption of prices to determine assessable value. The Tribunal reviewed the submissions and found that the Revenue alleged the appellants and M/s. Tubas were related persons, necessitating the adoption of prices of goods cleared to independent buyers nearest to clearance to M/s. Tubas under Rule 11 of Central Excise Rules.

The Tribunal dismissed the related person allegation, citing the Companies Act, which specified qualified relatives, excluding the situation between a proprietorship concern and a Private Limited company. Even if considered related, the Tribunal referenced the SACI Allied Products Limited case, stating that prices should be adopted for the same class of buyers. As M/s. Tubas purchased a significant portion of the appellant's production, the price to an independent buyer of similar quantity should be adopted. Consequently, the demand was not sustainable, and the appeal was allowed.