2020 (1) TMI 894 - AT - Central Excise

Valuation - inclusion of transportation charges paid for the transportation of the goods from factory to the Customer premises in the assessable value - Rule 5 of Central Excise Valuation Rules, 2000, read with Section 4(1)(a) of the Central Excise Act, 1944 - duplication of demand - demand reduced by the amount confirmed for that period by the earlier period - HELD THAT - Commissioner has category held in respect of overlap in the demand proposed in this Show Cause Notice and demand confirmed by him in his earlier order. When the First Show Cause Notice was issued on the basis of EA 2000 Audit making certain charges against the appellant, then how can another show cause notice have been issued on the basis of same EA 2000 Audit for the same period which is contrary to the first show cause notice. In the first Show Cause the value is sought to be determined in terms of Section 4(1)(a) read with Rule 4 and 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, whereas in the present show cause notice demand is sought to be made by invoking Rule 8 of the Valuation Rules ibid. Since Rule 8 of the valuation Rule is applicable only in the case where the goods are captively consumed, which is contrary to the fact that for the earlier period, the demand has been made by invoking the provisions of Section 4(1)(a) read with 5 of Central Excise Valuation (Determination of Price of Excisable Goods), 2000 we are not in position to uphold the demand confirmed in isolation in the present case even for the post period. Matter remanded back to Commissioner for re-adjudication of the issue for the period April 2013 to September 2013 - appeal allowed by way of remand.

Issues Involved:
1. Confirmation of demand beyond the scope of the Show Cause Notice (SCN).
2. Overlapping demands for the same period.
3. Valuation of goods under different rules.
4. Time-barred demand.
5. Inclusion of transportation costs in the assessable value.

Detailed Analysis:

1. Confirmation of demand beyond the scope of the SCN:
The tribunal noted that the Commissioner confirmed a demand of ?11,50,80,441/- when the SCN was only for ?69,23,028/-. The tribunal highlighted that the adjudication should be confined to the issues raised in the SCN. It cited the Supreme Court's ruling in Ballarpur Industries Ltd, emphasizing that the SCN defines the scope of proceedings. The tribunal found that the Commissioner’s order had traveled beyond the SCN’s scope, making the confirmation of the higher demand invalid. Consequently, the tribunal set aside the demand and remanded the matter back to the Commissioner for fresh adjudication based on the original grounds and amounts specified in the SCN.

2. Overlapping demands for the same period:
The tribunal observed that the Commissioner had issued two SCNs based on the same audit findings for overlapping periods, leading to duplication of demands. The first SCN involved valuation under Section 4(1)(a) read with Rule 5 of the Central Excise Valuation Rules, 2000, while the second SCN invoked Rule 8 of the same rules. The tribunal found this approach contradictory and contrary to the Supreme Court’s decisions. It noted that the Commissioner had already adjusted the overlapping demand in his order dated 03.06.2016. Since the revenue did not appeal against this adjustment, the tribunal upheld the Commissioner’s adjustment and confirmed the demand of ?14,566/- for the period April 2013 to September 2013.

3. Valuation of goods under different rules:
The tribunal noted that the appellant valued goods under Rule 8 read with Rule 11 of the Central Excise Valuation Rules, 2000, for goods not sold independently. The SCN demanded duty based on transportation charges under Rule 5, but the Commissioner confirmed the demand under Rule 8 based on a cost audit report. The tribunal found this approach inconsistent, as the Commissioner had initially determined that Section 4(1)(a) was applicable. The tribunal set aside the demand confirmed under Rule 8 and remanded the matter back to the Commissioner for re-adjudication.

4. Time-barred demand:
The tribunal addressed the appellant’s contention that the demand was time-barred. The SCN was issued on 27th November 2013 for the period November 2008 to March 2013, invoking the extended period of limitation. The appellant argued that they had a bona fide belief that transportation costs were not to be included in the assessable value and had consistently followed this practice. The tribunal did not provide a specific ruling on this issue but remanded the matter back to the Commissioner for fresh adjudication.

5. Inclusion of transportation costs in the assessable value:
The tribunal examined whether transportation costs from the factory to the customer site should be included in the assessable value. The Commissioner had initially determined that Section 4(1)(a) was applicable, making transportation costs includable. However, the demand was later confirmed under Rule 8 based on a cost audit report. The tribunal found this approach inconsistent and set aside the demand confirmed under Rule 8, remanding the matter back to the Commissioner for re-adjudication based on the original SCN’s grounds.

Conclusion:
The tribunal allowed both appeals, setting aside the demands confirmed by the Commissioner and remanding the matters back for fresh adjudication within six months, ensuring adherence to the original SCN’s scope and addressing the issues raised by the appellant.

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