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TMI Blog2014 (11) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... t nowhere suggest that quality of both molasses is same. The burden is upon the proper officer. If the proper officer would have considered various factors, so also material characteristics of comparable goods while valuing the goods of petitioner, then the burden would have shifted on the assessee. However, in the first instance the proper officer has not discharged the burden and the obligation cast upon him so as to shift the burden upon the petitioner. In the show cause notice only a bald averment is made that nearby sugar factory is selling molasses at the rate of ₹ 1310/- per metric tonne. Even, if, arguments of learned Assistant Solicitor General is considered referring to provisions of Sec. 6(b)(ii) of the Central Excise (Valuation) Rules, 1975, same would be of no avail inasmuch as sub-clause (ii) comes into operation, if the value cannot be determined under sub-clause (i) on the cost of production or manufacture including profits, which the assessee would have normally earned on the sale of such goods. Perusal of show cause notice, it transpires that the sole basis for issuing show cause notice is that nearby sugar factory is selling molasses at the rate of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion may be of different grade than that of the nearby sugar factory. The authority had sent the sample of the molasses to the technologist who had issued a certificate thai it would be valued at the rate of ₹ 1,000/- per metric tonne i.e. not at the rate of the molasses sold by the nearby sugar factory, still the Tribunal did not consider the said aspect. According to the learned counsel, it is the duty of the department to first assess the quality of molasses which has been considered as a comparative sale instance. Without considering the same the show cause notice could not have been issued. 4. Mr. Sharma, the learned Assistant Solicitor General states that while giving reply to other show cause notices, the petitioner has raised the ground that the grade of molasses manufactured by it and used for captive consumption is different than that of Shirpur Sugar Factory, considering the said reply show causes notices were withdrawn. But no such stand was taken in respect of the show cause notice in question. According to the learned counsel in view of Rule 6(b) of the Central Excise (Valuation) Rules, 1975 the authority was justified in issuing show cause notice, so also the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the value cannot be determined under sub-clause (i), on the cost of production or manufacture including profits, if any, which the assessee would have normally earned on the sale of such goods; (c) where, the assessee so arrange that the excisable goods are generally not sold by him in the course of wholesale trade except to or through a related person and the value cannot be determined under clause (iii) of the proviso to clause (a) of sub-section (1) of Section 4 of the Act, the value of the goods so sold shall be determined - (i) in a case where the assessee sells the goods to a related person who sells such goods in retail, in the manner specified in clause (a) of this rule; (ii) in a case where a related person does not sell the goods but uses or consumes such goods in the production or manufacture of other articles, in the manner specified in clause (b) of this rule; (iii) in a case where a related person sells the goods in the course of wholesale trade to buyers, other than dealers and related persons, and the class to which such buyers belong is known at the time of removal, on the basis of the price at which the goods are ordinarily sold b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise (Valuation) Rules, 1975 would be applicable. 12. Rule 6(b)(i) of the Central Excise (Valuation) Rules, 1975 will have to be read along with the proviso appended to it. The function of the proviso is that, it qualifies the generality of the main enactment by providing an exception and taking out as it were from the main section a portion, which, but for the proviso would fall within the main enactment. 13. The general rule in construing a provision containing a provision containing a proviso is to construe them together without making either of them redundant or otiose. Even if enacting part is clear, effort is to be made to give some meaning to the proviso and to justify its necessity. It is also settled proposition of law that the enacting part should be generally given such a construction which would make the exceptions carved out by the proviso necessary and the construction which would make construction unnecessary and redundant should be avoided. 14. Reading sub-clause (i) of Rule 6(b) with the proviso appended to it in harmony, it is abundantly clear that the value to be assessed at is that of comparable goods i.e. goods which are resembling or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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