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TMI Blog2014 (2) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... or consideration are M/s Magna Laboratories Gujarat Pvt. Ltd., (here in after called main appellant) are in the manufacturing activities of pharmaceutical goods and have a Central Excise registration. Investigation carried out by the officers of the Central Excise Dept. against the main appellant and it was noticed that they were not following the provisions of Central Excise Law as regards valuation of goods manufactured and cleared by them. On conclusion of such investigations, show cause notice was issued directing the main appellant as well as the other appellants to show cause as to why the differential duty, interest thereof, be not demanded and penalties not imposed on the ground that the main appellant had undervalued the goods clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion, should have dropped the proceedings, instead confirmed the demands on findings which was not alleged in the show cause notice. He would submit that the adjudicating authority has not considered the decision of supreme court in the case of M/s Champadhani Industries Ltd 2009(241)ELT.481(SC) and M/s Bellarpur Industries Ltd - 2007 (215) ELT.489 (SC). It is also his submission that the entire adjudication proceedings is served as show cause notice was issued in 2000 and the adjudication took place in 2006. It is his submission that the apex court in the case of M/s Reckit & Colman of India Ltd 1996(88)ELT 641 (SC) has settled the law, that if revenue has canvassed the allegations which the assessee was enough required to meet, such or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority, interest thereof and penalties imposed can be legally sustained. 9. On perusal of the show cause notice, more specifically Para No. 28, we find that the allegations are as under : It further appears that M/s MLPL have not considered the cost of the said technology provided by M/s USV ltd., to arrive at the assessable value of MVI for payment of Central Excise duty. M/s USV Ltd., has not charged the cost of said technology to M/s MLPL just to keep the assessable value of MVI considerably low and thereby they have colluded with M/s MLPL and abetted in evasions of Central Excise duty by way of undervaluation of the product, maximum retails price printed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MLPL and Shri Elavia, Chief Accountant of M/s USV Ltd., regarding receipt and payment respectively of the amount of sale value according to the contract price etc. are available on the records which are sufficient for me to hold that assessable value should be the price at which M/s MLPL sold the goods and not the price at which M/s USV Ltd sold the goods to their customers. Even these views of mine find support from the above finding of the then CCE, Surat II, to which I give my full concurrence. Accordingly, I reduce the demand of duty to Rs 82,87,106/- from the duty demand of Rs 4,01,77,736/- raised under the impugned SCN and hold that M/s MLPL shall pay duty of Rs 82,878,106/-. As discussed above. 11. It can be seen from the above repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Mumbai v. Toyo Engineering India Limited - (2006) 7 SCC 592, para 16}. 51. Similar view was expressed by this Court in the case of Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd. - (2007) 8 SCC 89. In paragraph 27 of the said report, learned Judges made it clear that if there is no invocation of the concerned rules in the show-cause notice, it would not be open to the Commissioner to invoke the said Rule. 52. Learned counsel for the Revenue also relied on some judgments. 53. It relied on the case of Oswal Agro Mills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are concerned with the provisions of the new Central Excise Act of 1985 which came into force on 22-2-1986 with Section Notes, Chapter Notes, Headings and sub-headings. Therefore, the ratio in Novopan (supra) has no relevance in the facts of the present case. 57. Learned counsel also relied on the decision of this Court in Hindustan Poles Corporation v. Commissioner of Central Excise, Calcutta - (2006) 4 SCC 85. In fact the judgment in that case does not at all advance the case of the Appellant-Revenue. In paragraph 39 of the judgment it has been held that the residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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