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TMI Blog2009 (11) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... r observation in this order and also in the light of judicial pronouncements. - E/868- 870/2007 - A/2246-2248/2009/WZB/AHD - Dated:- 3-11-2009 - S/Shri Ashok Jindal, Member (J) and B.S.V. Murthy, Member (T) Shri S. Suriyanarayanan, Advocate, for the Appellant. Shri Sameer Chitkara, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - The appellants are engaged in manufacture of air texturised yarn. Demand of duty of Rs. 76,24,090/- has been confirmed for the period from 15-5-03 to March, 2005 on the ground that the value cleared by them through 4 consignment agents was not determined as per the provisions of Section 4(1)(b) of Central Excise Act, 1944 read with Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 ('Valuation Rules' for short). Penalty of equal amount has been imposed on the company and penalty of Rs. 10 lakhs on Shri Shrikant Mundra, Director of the Company and Rs. 1 lakh on Shri P.G. Sharma, authorized signatory of the company, have also been imposed. 2. Further, the appellants have also filed a miscellaneous application for including additional ground. The additional ground proposed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or received by the appellant company from the consignment agent. Further, there is no legal requirement for the appellant to submit in his declaration regarding sale price, consignment agent and therefore there cannot be any suppression of the fact in absence of legal requirement. 5. As regards the contention that process of manufacture of air texturised yarn does not amount to manufacture, reliance was placed on the decision of the Tribunal in case of CCE v. Radhaballabh Silk Mills Pvt. Ltd. decided on 5-5-06 vide Final Order No. A/789/2006-WZB/C-III(EB) [2006 (203) E.L.T. 238 (T)]. In this case, it was held that the process of air texturised yarn is resulting in multi-folded yarn and the same is not texturised yarn. On the other hand, the learned SDR arguing for the Department submitted that the decision of the Tribunal in that case has to be considered in the light of the fact and not in isolation. He submitted that in Paras 15 and 16 of the said decision, it has been clearly mentioned that there was 8 test reports during the periods from 1983 to 2002. Out of these 8 test reports, 6 test reports were by Departmental laboratory and 2 test reports were by SASMIRA and both of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady observed above, the chartered engineer's certificate also does not really support the case of the appellant. Therefore, we do not consider this claim valid. 6. Coming to the second issue, the contention of the appellant is that there was price available at the factory gate and therefore the method adopted by the department for arriving at differential duty is wrong. Before we proceed further, it would be appropriate to reproduce the relevant Valuation Rules. Central Excise Valuation (Determination of Price of Excisable Goods), Rules, 2000 : "Rule 2. In these rules, unless the context otherwise requires, - (a) ... (b) "normal transaction value" means the transaction value at which the greatest aggregate quantity of goods are sold" "Rule 7. Where the excisable goods are not sold by the assessee at the time and place of removal but are transferred to a depot, premises of a consignment agent or any other place or premises (hereinafter referred to as "such other place") from, where the excisable goods are to be sold after their clearance from the place of removal and where the assessee and the buyer of the said goods are not related and the price is the sole considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 59/1/2003, dated 3-3-03 also supports this view. He also cited following decisions : (a) Castrol India Ltd. v. CCE, New Delhi, 2000 (118) E.L.T. 35 (Tri.-Del.), (b) Lipi Data Systems Ltd. v. CCE, Jaipur-II, 2001 (130) E.L.T. 91 (Tri.-Del.), (c) CCE, Vadodara v. Lark Wires Infotech Ltd., Tribunal's Final Order Nos. A/794-795A/WZB/Ahd/2008-CII, dated 29-4-08 as reported in 2008 (04) LCX 0030. Wherein it has been held that the date of removal from the factory gate has to be based on the nearest date of sales from the premises of consignment agent prior to the date of removal from the factory. We find that these decisions and the Board's circular were not cited before the original adjudicating authority. This claim by the appellant that the worksheet has to be based on the value prevailing on earlier date and not the subsequent date, is also required to be considered by the adjudicating authority. We make it clear that opinion expressed by us that as per Rule 7, the date can be cited earlier date or the subsequent date. 8. Last contention was that no suppression could have been invoked in this case. The submission was that there is no requirement of law to intimate the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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