9911796707
TMI Blog1999 (11) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... three factories were owned by the same person the assessable value of the goods cleared from Vasind to the other two factories was determined on the basis of cost of production by applying Rule 6(b)(ii) of the Valuation Rules. During the period between May, 1996 and June, 1997 appellant sold 16 consignments of the web to M/s. Courtaulds Packaging (I) Pvt. Ltd., Goa (CPPL for short). The goods were sold at Rs. 17.16 per sq. metre and the assessable value derived from this sale price is Rs. 233.81 per kg. This figure is considerably higher than the assessable value determined for its clearance to other factories of Rs. 123/- per kg. The department issued notice dated 27-2-1998 proposing to apply this value for the clearances of the goods made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there were clearances of the same goods is not relevant; they there not by way of sale. 3. In that event it will then follow, no other reason being shown for not applying the value to the clearances of the goods to the appellant s own factory, the value at which they were cleared to M/s. Courtaulds Packaging would be assessable value for the relevant period. However, the argument advanced that in that situation Modvat credit of the duty paid in the factory at Vasind would be available to the two factories of the appellant for utilisation towards payment of duty has to be accepted. The Commissioner had dealt with this argument by saying that this was a different issue. However, the fact remains that by application of Rule 57E the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maximize his profit by reaching the highest product price. 5. The second course is what the appellant seems to be done in the case of sales to M/s. Courtaulds Packaging. Hence by applying to its product a price based on sale price where manufacture has made in order derive huge profit the manufacturer s product could be priced out of market. There is in any event no material in the impugned order or in the show cause notice to demonstrate that the effect of higher assessable value determined could have the effect of increasing of the value of the finished product. So far as the web itself is concerned it will be clear that, even if its value is determined on the basis of the sale price given to M/s. Courtaulds Packaging, as have done, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AC qualifies the phrase contravention of any of the provisions of this Act or rules and does not apply to the earlier stated wilful mis-statement, omission, etc is not borne out by the judgement of the Supreme Court in the case cited by the appellant and is contrary to the judgment of the Supreme Court in Cosmic Dye Chemical v. Collector of Central Excise - 1995 (75) E.L.T. 721. In that judgment the Court has found that without intent to evade payment of duty the extended period in the proviso to Section 11A could not be invoked, applies to facts of this case. It has therefore to be concluded that penalty under Section 11AC was not imposable. Whether penalty could have been imposed under Rule 173Q is not a matter that needs consideration. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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