9911796707
TMI Blog2002 (1) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant is Magnesia Carbon Refractory Bricks (hereinafter referred to as the said goods ). Steel Authority of India Limited (SAIL) is one of the customers, who purchase the said goods from them by entering into contracts for supply to the units at Rourkela, Bhilai and Bokaro. Dead Burnt Sea Water Magnesite is a raw material for the manufacture of the said goods. This raw material had to be imported during the material period. (b) One of the clauses, in the contracts/purchase orders, which was common to all the purchase orders/contracts, read as follows :- (3) Advance Licence : - SAIL, BSP will arrange to transfer Nil duty Advance Import Licence to you for the quantity of Magnesia Carbon bricks ordered on you on 1:1 basis for imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The present appeal is against this order for the duty demanded for the period 1-3-1994 to 7-2-1995 vide Show cause notice dated 11-3-1998. 2. We have heard both sides and considered the submissions, and find :- (a) That the Commissioner has considered the question of the invocation of the larger period under proviso to Section 11A and has come to a conclusion as follows :- 9.2 On examining the above contentions, it is noticed from the admission made by them themselves in their own reply that the RT 12 returns had been assessed by the Range Officer until January, 1992 only. The period covered by the show cause notice is however from 30th March, 1994 to 7th February, 1995. Since, as per the assessee themselves, the RT 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger operative during the period covered by the show cause notice i.e., from March 1994 to February 1995. The assessee s reliance upon the permission granted more than six years earlier than March 1994 under Rule 173C(11), the conditions attached to the said conditions, are entirely misconceived, misplaced and factually unsubstantiated. While advancing such contentions, the assessee have conveniently, apparently with due deliberation, disregarded the fact that Rule 173C and deletion of Rule 173C(11) with effect from 1-3-94, the permission granted by the Collector, Central Excise, Bhubaneswar in October 1987 under Rule 173C(11), as then existing, automatically lapsed. 9.4 With effect from 1st March 1994, the assessee were required to comply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lish, that they fully complied with the new procedures as introduced under the amended provisions of Rule 173C with effect from 1-3-94, and that they discharged the statutory obligation of not merely certifying but also ensuring that there existed no consideration, in addition to the sale price declared on invoices/ GP 1s. Instead the assessee have in their defence submissions unduly stressed upon adherence to the procedure and conditions imposed in terms of permission granted by the department more than six years earlier under provisions of then existing Rule 173C(11). As discussed above, the assessee have failed to produce any kind of substantiating evidence, documentary or otherwise, to establish that they had diligently complied with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Commissioner, has rightly come to the conclusion regarding the fact of additional monetary consideration in addition to price being paid for the goods i.e., transfer of advance import licence in favour of the seller by the buyer enabling the seller of the goods to effect duty free import of the raw materials and bring down the cost of production/ procurement is a consideration, the monetary value of which has to be considered under the provisions of the Central Excise (Valuation) Rules, i.e., Rule 5 of Central Excise (Valuation) Rules, 1975. (c) Whether this addition proposed, should constitute the differential assessable value for calculating the duty or the same should be treated as differential price which would be inclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty, would have to be paid as excise duty. This would be achieved only if the extra accrual is added to the price and not if it is added to the assessable value. We would also consider that EXCISE DUTY to be a cut or a share, only from the produces proceeds and not an additional burden. The same concept has been approved by the Larger Bench in the case of Srichakra Tyres Ltd. - 1999 (108) E.L.T. 361 (T.-LB) = 1999 (32) RLT 1 (CEGAT). We would consider Rule 5 would require the determination of monetary considerations to be addable to the assessable value and do not approve additions of Rs. 6,500/- PMT as arrived at, which are gross additional receipts in this case to be added to assessable value without any supporting findings. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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