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TMI Blog2014 (9) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 12 lakhs per year thus keeping the price below the cost of production. Thus, in the show cause notice the charge of undervaluation against the applicant-assessee and the grounds therefore were clearly spelt out. Such consideration ought to be included in the assessable value under Rule 6 of the Central Excise Valuation Rules. Mere non-mention of Rule in the show cause notice does not vitiate the show cause notice. One of the decisions relied upon for inclusion of the additional consideration in the assessable value of the goods sold by DIPL is the apex Court's decision in the case of Fiat India Ltd. [2012 (8) TMI 791 - SUPREME COURT]. In the said case, the hon'ble Apex Court held that if goods are sold below cost, resulting in artif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation Rules, 2000. 2. In the show cause notice issued to the appellant, the charge was that M/s. Dipareena Investment Pvt. Ltd. (DIPL) and M/s. Legrand India Pvt. Ltd. (Legrand) were related persons and, therefore, the value for the purpose of assessment should be the price at which the related person, M/s. Legrand India Pvt. Ltd. sold the goods to unrelated buyers. Inasmuch as there is no mention of Rule 6 in the show cause notice and there is no finding also by the adjudicating authority, the finding of this Tribunal is incorrect and there is an error apparent on the face of the record. 2.1 The second mistake pointed out in the ROM application is that the demand confirmed by invoking the extended period of time should be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. vs. Collector of Central Excise 1996 (88) ELT 641 (SC); Hindustan Polymers Co. Ltd vs Collector of Central Excise, Guntur 1999 (106) ELT 12 (SC); and Commissioner of Customs Central Excise, Hyderabad - III vs. Rohit Industries 2008 (221) ELT 421. Accordingly, it is prayed that the order of the Tribunal be recalled and the appeal of the Revenue dismissed. 3. The learned Special Consultant appearing for the Revenue, on the other hand, submits that the finding of the Tribunal recorded in para 5.7, wherein it was held that there are certain additional consideration flowing from M/s. Legrand to M/s. DIPL and these additional considerations is includable in the assessable value of the goods under Rule 6 of the Central Excise Valuation Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to M/s Legrand as a buyer is substantially short of various specified other considerations, which M/s. Legrand as a buyer borne or provided for in connection with further sale of such goods, that M/s. DIPL also suppressed the indirect consideration as specified above flown from M/s Legrand to it and mis-projected its reduced cost price as the transaction value with an ulterior motive to evade payment of the due CE duty leviable on the said value and considerations, as measured in Annexure - I to the show cause notice. It further appears that to achieve this objective, M/s.DIPL violated the provisions of Section 4 read with other provisions as separately specified in this show cause notice to short determine the value of the goods with a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for rectification of mistake be dismissed. 4. We have carefully considered the submissions by both the sides. 4.1. We find that the case of the Revenue was that M/s. DIPL and M/s. Legrant are related persons in view of the nature of the transactions between the two and also in view of the additional considerations which flows from M/s. Legrand, the buyer to M/s. DIPL, the manufacturer. One of the grounds taken for this allegation was that there were additional considerations flowing from M/s. Legrand to M/s. DIPL by way of free supply of moulds, dyes, certain equipments, free supply of R D material, provision of manpower to supervise quality control and so on. Thus the allegation that additional consideration flowed from Legra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, the hon'ble apex Court [2008 (229) ELT 484 (SC)] held that the show cause notice did not allege that the additional considerations flowing from PGGL to GSL resulted in any relationship and, therefore, set aside the order of the Tribunal. However, the hon'ble apex Court directed the Tribunal to re-examine whether the additional consideration flowing could be included in the assessable value of the soaps manufactured by GSL. The facts involved in the present case are also identical to that decided by the hon'ble apex Court in the case cited supra. In the present case, one of the decisions relied upon for inclusion of the additional consideration in the assessable value of the goods sold by DIPL is the apex Court's decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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