9911796707
TMI Blog2010 (8) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 446 (Bom.)]. The Commissioner s order was mainly against the Revenue and partly against the assessee (respondent). There were penalties imposed on the company and its Corporate Head, Indirect Taxation, by the Commissioner under Rule 173Q of the Central Excise Rules, 1944 and Rule 209A of the said Rules, respectively. Against these penalties, the company and its Corporate Head, Indirect Taxation, preferred appeals to this Tribunal, which were allowed as per Order dated 11-6-2004 on the ground that the demand of duty on the company had been dropped by the Commissioner. When the Revenue s appeal against the Commissioner s order subsequently came up before this Bench it came to be dismissed on the basis of the doctrine of merger. It was aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case on merits, as directed by the Hon ble High Court. 3. On a perusal of the records, we find that, during the period of dispute (January, 1999 to June, 2001), the respondent-company had manufactured certain intermediates in their Patalganga unit, required by their sister units for the manufacture of lubricating oils, and these intermediates were transferred to such sister units on payment of duty. The Cost Construction Method was adopted for the assessments. Upon investigations by the department, it was found that, in respect of each intermediate, the same assessable value was maintained throughout the period of dispute even when higher values for the goods cleared from time to time during the said period were discernible from the acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalties. The Corporate Head (Indirect Taxation) also adopted the same stand. It was in adjudication of this dispute that the Commissioner passed the impugned order setting aside the demand of duty and penalty and directing the Assistant Commissioner that duty for the year 2001 shall be considered in the course of finalization of provisional assessment. The Commissioner further imposed a penalty of ₹ 1 lakh on the assessee under Rule 173Q and a separate penalty of ₹ 10,000/- on their Corporate Head under Rule 209A. These penalties on the company and its Corporate Head (Indirect Taxation) were set aside by this Tribunal and, apparently, that order attained finality. 4. What we are concerned with in the present case are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner cannot be sustained in the light of the Tribunal s Larger Bench decision in Jay Yuhshin Ltd v. Commissioner, 2000 (119) E.L.T. 718 (Tri.-LB). We find that, as rightly noted by the Commissioner, the intermediate goods manufactured and cleared by the respondent were captively consumed by the sister units. In order to rule out revenue-neutrality, the learned SDR has submitted that the subject goods should be considered to have been cleared by one assessee to another assessee and should not be considered to have been cleared for captive consumption. If this argument is accepted, the method of valuation adopted by the department should also be held to be wrong. The Cost Construction Method of assessment of excisable goods presupposes capti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisionality of assessment is in relation to the lubricating oils. If this assumption is correct, the valuation of the intermediate goods in question must not be affected by any provisional nature of the assessment of the final products. If, on the other hand, the assessments in respect of the intermediate goods, in question, were considered by the Commissioner to be provisional, then it was incumbent on the Commissioner to finalize the assessment. The Commissioner s order states inter alia that the provisional assessments in the year 1999 were finalized on 30-3-2001 by the Assistant Commissioner and that the assessments for the year 2000 were finalized by the Assistant Commissioner on 28-3-2002. As regards 2001, the assessments were found ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
