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TMI Blog2015 (4) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... he Valuation Rules, appears to be correct. While undertaking this limited enquiry into the said question, the Tribunal decided a pure question of law. In cases where excisable goods are produced or manufactured by hundred per cent export oriented undertaking are allowed to be sold in India, the duty of excise has to be the amount equal to the aggregate of the duties of customs which would be leviable under Section 12 of the Customs Act, on like goods produced or manufactured outside India if imported into India and where the said duties of custom are chargeable by reference to their value, the value of such excisable goods shall be determined, in accordance with the provisions of the Customs Act and Customs Tariff Act, 1975. - if Rule 4 is not applicable, the valuation of the goods has to be arrived at by applying Rules 5 and 8 in sequential order. Tribunal fell in error as applicability of Rules 5 and 6 depended on certain factual aspects which had to be gone into. The Tribunal has made certain observations on facts but without any material before it. The appropriate course of action for the Tribunal, in such a given situation was to remit the case back to the Commissioner to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Notification no.2/95 is applicable in the instant case. The Order-in-Original also decided that the Notification No.2/95 would be applicable. Therefore, in the appeal filed by the respondent, it took the plea that Notification 8/97 is applicable and the finding of the Commissioner that Notification 2/95 was applicable was erroneous. Pertinently, during the pendency of the said appeals, the respondent filed miscellaneous application wherein it sought to raise certain additional grounds. One of the grounds was that even if Notification 8/97 is applicable, valuation of the goods should be worked out under Rule 7 of the Customs Valuation Rules, 1988. This miscellaneous application was opposed by the Department by filing its objections, inter alia, stating that it was not the issue raised in reply to the show cause notices and was not the subject matter of the Order-in-Original. Further, it was not a pure question of law and therefore, the respondent should not be allowed to raise this additional ground. It appears that the aforesaid miscellaneous application was heard along with the main appeal, inasmuch as it is decided in the impugned order itself passed by the CEGAT. The CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the said rule from the sales price certain expenses and profit is required to be deducted. Further the duty and taxes payable by any importer in normal course of importation is required to be deducted. It is clear from the above that insofar as second contention of the respondent on Rule 7 is concerned, the Tribunal has accepted the plea of the respondent herein. Challenging this part of the order the present appeal is preferred by the Revenue. At the outset Mr. K. Radhakrishnan, learned senior counsel for the appellant argued that the aforesaid additional ground raised for the first time in the miscellaneous application should not have been allowed by the Tribunal, more so, when it was not a pure question of law but mixed question of law fact. He read out the portion extracted above where the Tribunal itself has made certain factual observations, namely, the manufacturer is able to realize higher amount for sales made to developed countries like America, U.K, France, etc. and the price which is realized from the export made to underdeveloped countries like Bangladesh, Malaysia is less. It is also observed by the Tribunal that the value of fabric not only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia and a duty on salt manufactured in, or imported by land into, any part of India as, and at the rates, set forth in the Schedule to the Central Excise Tariff Act, 1985: Provided that the duties of excise which shall be levied and collected on any excisable goods which are produced or manufactured,-- (i) In a free trade zone and brought to any other place in India; or (ii) By a hundred per cent export-oriented undertaking and allowed to be sold in India; Shall be an amount equal to the aggregate of the duties of customs which would be leviable under section 12 of the Customs Act, 1962 (52 of 1962), on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975). As is clear from the bare reading of the aforesaid proviso, in those cases where excisable goods are produced or manufactured by hundred per cent export oriented undertaki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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