9911796707
TMI Blog2016 (3) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants are manufacturers of cotton yarn and cleared on payment of Excise duty. The finished goods were partly cleared to their own partnership firmsand partly cleared to the unrelated buyers. The adjudicating authority in his order No.55/2003 dt. 8.12.2003 dropped the recovery of differential duty of Rs. 16,27,108/- and Rs. 3,37,488/-. Consequent to the said OIO, the appellant preferred refund claim for the differential duty already paid under protest. Refund was also sanctioned vide OIO No.3/2004 dt. 28.4.2004. Revenue preferred appeals before Lower Appellate Authority against both OIOs dt. 8.12.2003 and 28.4.2004. The Commissioner (Appeals) in the impugned OIA No.40/2005 dt. 21.3.2005 and OIA No.205/2005 dt. 13.10.2005 set aside the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .-Del.) (5) Gangotri Electrocastings Ltd. Vs CCE & ST Patna-2013 (293) ELT 395 (Tri.-Kolkata) She submits that demand is barred by limitation. Initially the unit was audited by the department in 2001. She drew our attention to audit report at page 170 of the paper book where the department has examined their clearances made to related firms and certified that no discrepancy on valuation. 4. On the other hand, Ld. A.R for Revenue reiterated the findings of the impugned orders both on merit as well as on limitation. On the allegations, he relied OIAs which clearly established mutuality of interest. He also referred to Board's circular dt. 1.7.2002 at point No.5 and point No.12 wherein the Board has clarified that for the goods c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buyer and partly to their sister unit. We find the method of valuation when goods are partly cleared to related person, has been clarified by the Board in their circular dt. 1.7.2002. The relevant points of doubt and clarification is reproduced as under :- (Point:5) "Point of doubt: How will valuation be done in cases of captive consumption (i.e. consumed within the same factory) including transfer to a sister unit or another factory of the same company/firm for further use in the manufacture of goods? Clarification : For captive consumption in one's own factory, valuation would be done as per Rule 8 of the valuation Rules i.e. the assessable value wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch goods should be assessed on the basis of transaction value and duty to be determined as per Section 4 for each removal. This issue stands settled by the Tribunal's Larger Bench in the case of Ispat Industries Ltd. Vs CCE Raigad (supra). We reproduce the relevant paragraphs of the LB decision as under :- "8. The conclusion that we are drawing in the present case would lead to determination of a value which, in our view, will not only be reasonable but also consistent with the provisions of Section 4 of the Central Excise Act. We would, at this stage, draw support from the judgment of the Supreme Court in the assessee's own case, as reported in 2006 (202) E.L.T. 561, wherein the Court applied "The Gunapradhan Principle" in interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also for the reason that in a case where both the rules are applicable, the application of Rule 4 will lead to a determination of a value which will be more consistent and in accordance with the parent statutory provisions of Section 4 of the Central Excise Act, 1944." In the above Tribunal's LB decision, it is clearly held that provisions of Rule 8 will not apply where the goods were partly cleared to independent buyer and also held that rule 4 is to be preferred over rule 8. This Tribunal in the case of Gangotri Electrocastings Ltd. Vs CCE & ST Patna (supra) has held that clearances to related person, value should be on the basis of sales of same goods cleared to independent customers as per rule 4. The ratio of Tribunal's LB i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
