9911796707
TMI Blog2003 (8) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... Price Control Order (herein after referred to as DPCO) when the said drugs are not only captively consumed but are also sold to the appellants loan licensees at the DPCO prices and various other manufacturers also manufacture the same bulk drug have to sell it and actually sell it at the DPCO price. (b) On limitation as the show cause notice is dated 30-3-1997 and demands duty for the period 1-2-1992 to 29-2-1996. When except for a bald statement on the last page of Annexure-A to the show cause notice that : The above short payment is the result of misdeclaration/suppression of fact by M/s. Parke Davis (India) Limited while declaring/paying the Central Excise duty. No other material to invoke the proviso Clause to Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion beyond the purpose for which it is created . Section 4 is very clear on how the assessable value is to be computed. And order I demand the Central Excise duty of Rs. 42,23,995.18 under Section 11A of the Central Excise Act, 1944 read with Rule 9(2) of Central Excise Rules, 1944. I also impose penalty of Rs. 42,23,995.18 under Section 11AC of the Central Excise Act, 1944. Interest at the rate of 20% per annum is also recoverable from them under Section 11AB ibid. 3. After hearing both sides and considering the matter on record it is found that :- (a) From the show cause notice issued in this case it is clear that the charge was that the appellants had paid duty as per the statutory price fixed for the goods cleared for ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y them. No counter to this plea was made by Revenue or as has been arrived at in the impugned order. (c) Perusal of the reasoning; as extracted herein above and arrived at by the learned Commissioner, is found, that it has been held, that the said bulk drug and its sales are to their sister concern, who are related persons, as per Central Excise Act, 1944, and as such sister concerns were consuming the said bulk drugs captively, it would require the determination of the values as per Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975 on the basis of costing as no comparable price was available. Perusal of the show cause notice does not indicate any material to conclude that sales are to a related person. The show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds to apply provisions of Rule 6 as in this case. In the present case there is material available that goods are sold not only by the appellant but by many other manufacturers at DPCO prices fixed for the goods. Therefore it is clear that value of the excisable goods under determination in this case, could be based on the value of similar goods being sold by the assessee for delivery as provided for by Rule 4. Such price would be the DPCO price. In not ruling out application of Rule 4, the Commissioner appears to have been led by the charges in the show cause notice and has concluded that Rule 6(b)(ii). This would not be applicable, without ruling out Rule 6(b)(i), which would again mandate the application of prices of same manufacturer o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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