9911796707
TMI Blog2010 (8) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel has pointed out what is referred to as apparent errors. Firstly, it is submitted that the Hon'ble Supreme Court's judgment in ITC v. Collector of Central Excise, Patna - 2003 (151) E.L.T. 246 (S.C.) was not correctly applied to the facts of this case. Secondly, it is submitted that no decision was rendered on the valuation dispute in the case. 2. Elaborating the first point, the learned Counsel submits that the Bench did not take into account the ratio of the decision contained in para 18 of the Apex Court's judgment. In the case considered by the Apex Court, one of the disputes was in relation to valuation of cigarettes which were sent for quality control test to a laboratory within the factory of production. The assessee co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee. 3. We have heard the learned SDR also, who submits that this Tribunal duly considered the Apex Court's decision and correctly applied the same to the facts of this case. 4. On a perusal of the specimen invoice available on record, we note that a commodity described as "waste and scrap of plastic : preservative sample" was cleared under cover of this document and on payment of duty on the transaction value. In this invoice, there is nothing to indicate that the material cleared by the appellant was generated from the quality control tests in the laboratory. We have also perused a tabulated statement captioned "scrap summary" (pages 21 and 22). The learned Counsel has submitted that this statement fully accounted f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the basis of average sale value gathered from ER-1 returns filed by the assessee during the material period in respect of the finished goods cleared from their factory. It is submitted that, though the appellant sought to justify payment of duty based on transaction value, the original authority chose to adopt the method of valuation proposed in the respective show cause notices. It is further submitted that, though the anomaly in valuation was pointed out in the appeals before this Tribunal, it was not examined. Again, we have heard learned SDR who has sought to defend the Tribunal's final order. 6. On a perusal of the final order, we find that the Bench noted the submission of the appellant that the samples had been cleared as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on method of valuation and quantified duty accordingly whereas the fourth one quantified demand of duty on the basis of average sale value gathered from ER-1 returns filed by the assessee in respect of the final products cleared from the factory during the material period. The adjudicating authority chose to follow these double standards in respect of identical goods cleared in identical factual situations. We note that this aspect escaped the attention of the Bench when the final order was passed. To this extent, there is an apparent error in the final order and the same has got to be rectified. 7. Accordingly, the following paragraphs shall be substituted for para 12 of the final order :- "12. We have also considered the valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the limited purpose of re-quantification of the duty based on correct valuation. All relevant submissions (regarding valuation) made by the assessee in reply to show cause notices will have to be carefully considered in de novo proceedings. 13. In the result, after upholding the decision of the lower authorities on the dutiability of the goods and the applicability of extended period of limitation, we direct the original authority to re-quantify the amount of duty on the basis of correct valuation of the goods in accordance with law after giving the assessee a reasonable opportunity of being heard. It is also made clear that the assessee will be liable to pay interest under Section 11AB of the Central Excise Act on the duty amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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