9911796707
TMI Blog1999 (4) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the exemption Notification No. 217/86. Some of the engines were cleared on payment of duty to the applicants factory at Pithampur where they were used in the manufacture of motor vehicles and Modvat credit was availed of. Such utilisation at Pithampur was with effect from 16-3-1995 on which date the benefit of the cited notification ceased to be available where the utilisation of dutiable components for captive consumption was in a place other than the factory of manufacture. The I.C. Engines were sold to outside buyers at prices duty approved by the department. The price of I.C. Engines sent to Pithampur was also approved by the department. The assessable value for the I.C. Engines sold in the market and for the engines consumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had never seriously considered the value being shown in the internal documents. He stated that once the value was available for the sale at factory gate to the customers who are not related to the assessees, the value so declared was applicable to assessment for captive consumption also where such captive consumption attracted duty. This was laid down by the Tribunal in the case of Ashok Leyland Ltd. [1987 (29) E.L.T. 530] as well as HMT Ltd. [1989 (41) E.L.T. 602]. If the department was not contesting the value so determined for the purpose of sales to outside buyers, then the same value should apply to clearances made for captive consumption. The valuation adopted for clearances to Pithampur, therefore, could not be enhanced. 3. His fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. Commissioner has opted for determining the value of the contested goods in terms of Section 4(1)(b) and Rule 6(b)(i), in the face of the assessees, claim that the value was available under Section 4(1)(a). The Commissioner called it as a fallacious argument and observed that they had hardly sold any of the engines at the factory gate and practically the entire production was utilised for captive consumption. In holding this, the ld. Commissioner has not taken into consideration the pronouncement made by various courts on this issue. Gauhati High Court in the case of Sarada Plywood Industries Ltd. [1994 (74) E.L.T. 528 (Gau.)] had held that relative quantum of goods sold ex-factory was immaterial. Even if the bulk of the goods were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner in paragraph 18 of the impugned order has taken cognizance of the fact but has failed to give weightage to this argument on entirely extraneous consideration. Hence, we find that on limitation, the applicants have made a strong prima facie case. At this stage, without going into the merits of the case, on this ground alone, we deem it proper to grant unconditional waiver and stay of the duty demanded and the penalty imposed in the impugned order. It is so ordered. 8. In the order, the land, building etc. stand confiscated with option for redemption. We permit the assessees to continue using this facility subject to their filing an undertaking/bond before the Commissioner to the effect that they shall not sell, lease or otherwise pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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