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TMI Blog1993 (8) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to as the rules ), duty liability was restricted to certain specified parts. The appellants were manufacturing both dutiable and non-dutiable parts. It was alleged that the appellants were under-declaring the prices of dutiable parts and thus evading payment of Central Excise duty; at the same time another set of bills were issued for non-dutiable parts wherein the extent of under-valuation with regard to dutiable parts, was made good by inflating the prices of such non-dutiable parts. 3. The differential Central Excise duty demanded in the show cause notice dated 16-4-1986 was worked out on the basis of the actual value of the accessories determined on the basis of purchase bills/market rates. From this value, the declared value of accessories/parts of compressors was deducted, and the value differential was added to the value of compressor on which duty was paid. 4. The case was adjudicated by the Director (Publications) Central Excise, New Delhi. With the agreement of the appellants, a practising Cost Accountant nominated by the Institute of Costs and Works Accountants of India, New Delhi, had been asked to work out the cost of their compressors and its accessories. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... throughout India. 9. Regarding costing done by the Cost Accountant, he submitted that they have challenged the costing. He further stated that the procedure adopted by the Revenue for loading of invoices and raising of demand was not as per law. 10. Shri P.S. Bedi, the learned Consultant concluded his arguments, and the case remained part-heard and was adjourned to 10-5-1993. 11. During the course of the arguments, it transpired that the paper book filed by the appellants did not contain the copies of the documents viz. invoices etc., and also the statements recorded. The learned Consultant undertook to file the same. It was also found that there was no paper book filed by the respondents in terms of the provisions of sub-rule (16) of the CEGAT (Procedure) Rules, 1982. The learned SDR also undertook to file the paper book for the assistance of the Bench. 12. On 10-5-1993, the learned Consultant recapitulated the points made by him on 14-1-1993. He submitted that the demand was time barred. In support of his argument on this score, he relied upon the Tribunal s decision in the case of Ice and Diesel Engine Works -1991 (53) E.L.T. 70 (Tri.) = 1992 (43) ECR 293 (Tribunal). He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturing and selling costs and profits; (2) 1988 (33) E.L.T. 787 - Care needed to ensure price of goods not diverted to service charges in a single supply-cum-service contract and determination of costs of services and goods, and reasonable margin of profit to be allowed by the department. 16 The learned SDR submitted that if the Cost Accountant s certificate needs reconsideration, he had no objection for remand. 17. The learned SDR did not, however, submit a copy of the Cost Accountant s certificate relied upon by the Revenue. No paper book has been filed as undertaken by him during the course of hearing on 14-1-1993. 18. In reply, the learned Consultant stated that the declaration was only about the sale price and not for costing. The goods had been sold at the prices declared. He concluded that it was a fit case for remand after proper costing. 19. As mentioned above, we find that the learned Consultant has not supplied the copies of the invoices, statements etc., as undertaken by him during the course of hearing on 14-1-1993. 20. We have carefully gone through the facts and circumstances of the case and have carefully perused the submissions made on behalf of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) is neither restricted nor controlled by the provisions of sub-item (1) and (2). 24. The emphasis by the Hon ble Supreme Court in their historic judgment in the case of Union of India v. Bombay Tyre International - 1983 (12) E.L.T. 869 (SC) and 1983 (14) E.L.T. 1896 has been on the real wholesale cash price, the true value of the excisable article (para 42); the price is the sole consideration for the sale and that no extra commercial considerations" should enter into the transaction, (paras 31 and 42). 25. The Hon ble Supreme Court has repelled the contention that the value of an excisable article must be limited to the manufacturing cost plus the manufacturing profit (paras 13 and 40). 26. Referring to the Tariff Advice No. 10/76, dated 3-3-1976 issued by the CBEC, the appellants had contended that under the doctrine of promissory estoppel, the department could not load the sale prices of the accessories, to the assessable value of the compressors. 27. The appellants in the case before us had not disclosed the pattern of their sale. It could not be presumed that in the totality of the transactions, the department could have known the truth. It was incumbent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds in contravention of any of the provisions of the Act or any rule made thereunder or when he fails to supply any information which he is required by rules made under the Act to supply, but also when he supplies false information. 35. The M.P. High Court, however, added omission to enter correct price is not a contravention of Rule 173C within the meaning of Rule 173Q." It is significant to note that the High Court had used the expression omission and not wilful deliberate omission with a view to evade payment of duty . 36. The appellants have referred to the earlier disputes to show that the department was aware of their modus operandi. It is seen that the earlier disputes related to the classification and dutiability of the exempted parts. There was no issue at that time that from the prices of the compressors, malafide deductions have been made with a view to evade central excise duty, and that the manufacturer loaded such deductions on to the prices of the exempted goods; and that in the process, while themselves realising higher prices from the customers, evaded payment of appropriate central excise duty. 37. Board s Tariff advice in no way provided that even when m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee so desires, such an expert, could also be called for tendering evidence and could also be cross examined, if the assessee so chooses. Of course, the adjudicating/Appellate authority had to come to his/her own decision in consonance with the principles of natural justice. 46. In the case of Rubicon v. CCE - 1988 (38) E.L.T. 353, the Tribunal had observed that - the opinion of an expert has to be treated in law as evidence of any other witnesses and does not stand on a higher footing. The Supreme Court has pointed out that expert or no expert, the Court or the Tribunal cannot shirk its responsibility in applying its mind and effecting comparison before reaching a conclusion . 47. Again in the case of Kiran Overseas v. Collector of Customs - 1988 (38) E.L.T. 362, the Tribunal has observed that the expert opinion is only a relevant piece of evidence and it is ultimately for the quasi-judicial authorities to adjudge the correctness of the same by application of their mind having regard to the facts and circumstances of each case . 48. We find that while the appellants have challenged the findings of the Cost Accountant, the adjudicating authority has not discussed the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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