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TMI Blog2014 (9) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... at a value higher than arrived at by the respondent for the discharge of the duty liability of the cement. Noticing the fact that regular monthly returns were being filed by the respondent from March, 2008 onwards, which were accepted by the authorities without any murmur, while fixing the higher value at which the sale was made to the independent buyers being the assessable value of goods transferred to another plant, extended period of limitation was not sustained by the Tribunal. Thus on both the counts, firstly that there came a decision explaining and clearing the doubts as to in what manner the valuation requires to be done in the event of captive consumption of goods as also in case of goods transferred to sister concern or to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding the differential duty demanded and confirmed by CCE, Bhavnagar, as an adjudicating authority, on clearances made from NCMU unit without jurisdiction vide Order-in-Original Nos. 1 to 4/BVR/Commissioner/2011, dated 22-3-2011, Order-in-Original No. 39/BVR/Commissioner/2011, dated 21-9-2011 and Order-in-Original No. 3/BVR/Commissioner/2012, dated 1-2-2012? 3. Brief facts arising in Tax Appeal No. 823 of 2013 are as follows :- 3.1 The respondent authority is manufacturer of cement discharging the central excise duty on the cement cleared by them. Revenue believed that in the clearances effected by the appellant to their own units, the respondent had undervalued the clearances by resorting to valuation under Rule 8 read with Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circular of the department, which otherwise is binding to the department, itself. 8. At the outset, Circular No. 643/34/2002-CX., dated 1-7-2002 is to be referred to and relevant portion of the same requires to be reproduced hereunder :- Sl. No. Point of doubt Clarification How will valuation be done in cases of captive consumption (i.e. consumed within the same factory) including transfer to a sister unit or another factory of the same company/firm for further use in the manufacture of goods ? For captive consumption in one s own factory, valuation would be done as per Rule 8 of the Valuation Rules i.e. the assessable value w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on value. 11. Details of Section 4, which speaks of the transaction value after substitution by Section 94 of the Finance Act, 2000, has come into effect from 1-7-2000, which runs as follows :- 4. (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall - a. in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, be the transaction value; b. in any other case, including the case where the goods are not sold, be the value determined in such manner as may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application of Rule 4 will lead to a determination of a value which will be more consistent and in accordance with the parent statutory provisions of Section 4 of the Central Excise Act, 1944. 14. It could be noticed from the material on the record that the Larger Bench had concluded that the provision of Rule 8 of the Valuation Rules would not apply in a case where some part of the production of goods were cleared to the independent buyers. Admittedly, in the instant case, there is a sale of loose cement to the independent buyers at a value higher than arrived at by the respondent for the discharge of the duty liability of the cement. Noticing the fact that regular monthly returns were being filed by the respondent from March, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Coaltar Chemicals Manufacturing Co. v. Union of India reported in 2003 (158) E.L.T. 402 (S.C.), the Apex Court has held that the manufacturer or the producer whenever is to be saddled with any liability, the question that would arise is as to whether there was any deliberate act of suppression of the information, which the manufacturer knew otherwise and in every case that question of fact needs to be established. 19. Thus on both the counts, firstly that there came a decision explaining and clearing the doubts as to in what manner the valuation requires to be done in the event of captive consumption of goods as also in case of goods transferred to sister concern or to another factory of the same assessee and till then, board cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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