9911796707
TMI Blog2017 (1) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... ir case before the appellate authority on the date that may be fixed by him, issuing notice to both sides within three months of receipt of this order. Appellant’s further submission is that the time-bar aspect may also to be looked into since there was no intention of the appellant to cause evasion and nothing in the show cause notice shows that elements of proviso to Section 11A were present to invoke extended period - The matter having been remitted as above, if any plea is made by appellant in respect of time bar, in the course of readjudication, such aspect is left open to the appellate authority to examine and outcome of his examination shall be recorded by the Authority and resolved - Appeal allowed by way of remand. - E/276/2005 & E/957/2005, E/635/2005, E/636 & 637/2005, E/700-702/2005 - FINAL ORDER No.42271-42278/2016 - Dated:- 6-10-2016 - Shri D.N. Panda, Judicial Member and Shri Madhu Mohan Damodhar, Technical Member Ms. L. Mythili, Advocate : For the Appellant Shri K.P. Muralidharan, AC (AR) : For the Respondent ORDER E/276/2005 E/957/2005 Appellant s principal grievance is that the adjudications relating to the period September 1997 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er place or premises from where the excisable goods are to be sold after their clearance from the factory and, from where such goods are removed; 1.5 According to the above definition, the places enumerated in the definition were recognised to be place of removal to determine assessable value of the excisable goods cleared therefrom. Accordingly, normal price charged to non-related buyers in the course of wholesale trade for delivery at the time and place of removal was recognised to be transaction value. 1.6 The expression time of removal was defined by section 4(4) (ba) of the Act as under : SECTION 4 Valuation of excisable goods for the purpose of charging of duty of excise - .... .... .... (4) For the purposes of this section, ? (a) .... .... .... (b) .... .... .... (ba) time of removal , in respect of goods removed from the place of removal referred to in sub-clause (iii) of clause (b), shall be deemed to be the time at which such goods are cleared from the factory. 1.7 According to law as that was prevailing during material period, sale price charged in respect of a solitary transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. 1.12 Rule 7 of Central Excise (Valuation) Rules, 2000 w.e.f.1.7.2000 prescribed mode of valuation of goods cleared as under : RULE 7 : Where the excisable goods are not sold by the assessee at the time and place of removal but are transferred to a depot, premises of a consignment agent or any other place or premises (hereinafter referred to as such other place ) from where the excisable goods are to be sold after their clearance from the place of removal and where the assessee and the buyer of the said goods are not related and the price is the sole consideration for the sale, the value shall be the normal transaction value of such goods sold from such other place at or about the same time and where such goods are not sold at or about the same time, at the time nearest to the time of removal of goods under assessment. POSITION OF LAW FROM 14.5.2003 1.13 Again, Section 4 of the Central Excise Act, 1944 underwent amendment with effect from 14.5.2003. The mode of valuation prescribed by section 4(1) of the Act read as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s normal transaction value . Therefore, the term time of removal was defined to specify the moment of removal of the goods from the places referred to in sub-clause (iii) of clause (b) of Section 4(1) (a) of the Act to rule out abnormality and anomaly in valuation of excisable goods. That was deemed to be the time at which excisable goods were cleared from the factory. 2. Appellant submitted that a combined reading of the provision of Section 4(1) and 4(4) of the Act leads to the conclusion that the normal sale price of the excisable goods prevailed at a place of removal at the time of removal thereof was recognised by law to be basis for determination of assessable value in respect of unrelated party transactions. Any solitary transaction or any unusual transaction was not intended to provide basis to determine transaction value. However, learned appellate authority in these two appeals, without having regard to the intention of the legislature, passed order adopting price of a solitary transaction of a day made at a depot holding that to be basis for determination of transaction value of all sales of that day, which is not the intention of law. 3. Per co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that the representative price at the time of removal from the respective place shall be the assessable value. 6. The impugned order considered the sale price of a solitary transaction as is apparent from paragraphs 6.5.2, 6.5.3, 6.5.4 of the impugned order to arrive at the assessable value. The manner of examination done by the appellate authority below does not demonstrate proper application of the law introduced w.e.f. 28.9.1996 till 30.6.2000 . Representative sale price prevailed at the particular point of time at the place of removal to satisfy the condition of Section 4(1) (a) of the Central Excise Act, 1944 was not considered by that Authority. Such legal infirmities demonstrate improper application of law. Therefore, in the light of the above analysis of law, it would be proper for both sides to place their case before the appellate authority on the date that may be fixed by him, issuing notice to both sides within three months of receipt of this order . He shall hear them thoroughly on the basis of the law for the time being in force and test the transactions on the touch stone of law in respect of the issues involved in these two appeals to arrive at the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
