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TMI Blog2015 (4) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... t of prohibition or any appropriate writ in the nature of prohibition prohibiting the Respondents their subordinates, servants and agents from taking any further steps or proceedings pursuant to or in furtherance of Show Cause cum Demand Notices mentioned in table at paragraph 3 of the present Petition." 2. In prayer clause (d) of the writ petition, a writ of mandamus or any writ, order or direction in the nature thereof has been sought to direct the respondents to apply a larger bench decision of the Tribunal in the case of Ispat Industries Limited vs. Commissioner of Central Excise 2007 (209) Excise Law Times, Pg. 185. 3. When this writ petition was called out for admission, Mr. Kantharia appearing on behalf of the Revenue / respondents raised a preliminary objection and submitted that the writ petition may not be entertained as it challenges a show cause-cum-demand notice. Since the matter has been brought at the stage of a show cause notice, this Court should not interfere in writ jurisdiction. More so, when there are disputed questions of fact. Mr. Kantharia was fair to submit that the writ petition proceeds on certain conjectures and surmises, particularly that the show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production. 7. According to the Revenue, the assessable value of cement cleared to these ready-mix concrete units, packing plants is required to be determined in terms of Rule 4. Inviting our attention and extensively to the scheme of the Central Excise Act, particularly section 4 sub-section (1), clauses (a) and (b), and the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, Mr. Sreedharan would submit that Rule 8 is very specific and applies to captive consumption of goods in the manufacture of other articles. In the present case, all conditions of Rule 8 are fulfilled. If the Rules which are in place for determining assessable value and particularly Rule 8 falling therein have been understood by the department by a circular issued on 30th June, 2000 and by a further circular dated 1st July, 2002, then, nothing contrary thereto can be urged by the Revenue. The law on the point is very clear according to Mr. Sreedharan viz. that department circulars are binding on the department or Revenue. They may not bind the Court because it is the Court's duty and obligation to interpret the law. However, and so far as the department is concerned, it cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise vs. Ratan Melting & Wire Industries 2008 (12) Sales Tax Reporter, Pg. 416. 11. With the assistance of the counsel appearing for both sides, we have perused the writ petition and the annexures. Once Mr. Kantharia has clarified that irrespective of what has been alleged in the show cause notice and the understanding of the department of the legal position, the Adjudicating Authority will hear the petitioners and at such hearing, allow it to raise all objections, including relying on the circulars of the department, then, we need not express anything with regard to the rival contentions. Suffice it to state that Mr. Kantharia's fair concession even extends to the petitioners being allowed to argue that the larger Bench decision of the Tribunal in the case of Ispat Industries Limited (supra) will not assist the Revenue in any manner. That decision apart, the case of the present petitioners must be considered in the light of the legal provision viz. Rule 8 and the circulars which bind the department. 12. If above contentions can be raised in the adjudication, then we have no doubt in our mind that the Adjudicating Authority will duly consider them and render its findings and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e determined. 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 sale, it would be the transaction value for the purposes of computation of duty chargeable on the excisable goods. In any other case, including where the goods are not sold, the value has to be determined in accordance with the manner prescribed. The word "prescribed" means prescribed by the Rules. Therefore, The Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, have been issued. They define the term "normal transaction value" in Rule 2 clause (b). They define the value to mean the value referred to in section 4 of the Act and they clarify that words and expressions used in these Rules and not defined in the Act shall have the meanings respectively assigned to them in the Act. 16. Chapter II of the Rules provide for determination of value and by Rule 3 itself it has been clarified that value of any excisable goods for purpose of clause (b) of sub-section (1) of section 4 be determined in accordance with these Rules. Thus, the goods which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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