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TMI Blog2017 (3) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... nal profit. As per the fact of the case there is no sale of the goods in question by the appellant, therefore value of comparable goods of other manufacturer has to be accepted as comparable price - appeal allowed - decided in favor of appellant. - E/2098/06-MUM - A/86039/17/EB - Dated:- 23-2-2017 - Mr Ramesh Nair, Member(Judicial) And Mr. Raju, Member (Technical) Shri. J.C. Patel, Advocate for the Appellants Shri. V.K. Shastri, Asstt. Commissioner(A.R.) for the Respondent ORDER Per Ramesh Nair The appellant manufactured Bulk Drugs and Pharmaceutical formulations and cleared to their unit at Goa. The transaction from appellant unit to their Goa unit does not involve sales. Appellant filed required declaration under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es India Ltd wherein Drug Price Control Order(DPCO) price was charged and duty was being paid on such DPCO price. The adjudicating authority did not accept DPCO price as comparable price and duty demand was confirmed on the value arrived at costing method. Being aggrieved by the denovo adjudication order dated 29-3-2006 appellant filed this appeal. 2. Shri. J.C. Patel, Ld. Counsel for the appellant submits that as per the Tribunal remand order it was clearly directed the adjudicating authority to consider comparable price for re-computation of demand. The appellant submitted the price of comparable goods manufactured and cleared by M/s. Kores India Ltd, the said price is a DPCO price. The DPCO price is comparable price and the same shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee would have normally earned on the sale of such goods; (c) ------------------------------------- As per above Rule 6(b)(i) when the goods are not sold by the assessee but are used or consumed by the manufacturer himself or on his behalf in the production of other article, the value should be based on the value of comparable goods produced or manufactured by the assessee or by any other assessee and in such case value cannot be should computed on the cost of production including notional profit. As per the fact of the case there is no sale of the goods in question by the appellant, therefore value of comparable goods of other manufacturer has to be accepted as comparable price. The appellant has relied upon the price of M/s. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DPCO price for bulk drug consumed by them, as assessable value and paid duty on the basis of such declared value. Therefore, they were liable for the duty on duty determined on casting method. (b) From the copy of an Audit Report, for the objections raised during the course of audit of the appellants factory, communicated to them vide range superintendent CEX/VIII/ dn.III/CERA/92, dated 30-10-1992, it is apparent that an audit objection for the bulk drug Chloramphenicol Palmitate IP manufactured by them and used captively in the manufacture of final products exempted from duty, an amount of duty of ₹ 10,99,254/- was required to be paid. This amount of duty as submitted by the advocate was determined by the department on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such conclusion cannot be upheld. (d) As regards the reliance of the Commissioner on the case CCE, Meerut v. Daurala Sugar Works - 1997 (93) E.L.T. 537 (Tri.) , it is found on the perusal of the same, that it has held valuation in such cases, had to be arrived at based on Rule 6(b)(i) of the rule and for that purpose the adjudicating authority could arrive at average prices. In that case Tribunal remitted the matter back to the adjudicating authority for determination of the value. The learned Commissioner has relied on a part of the order of the tribunal but ignored the findings therein. Such Incomplete reliance, based on the CEGAT decisions cannot be upheld. (e) A perusal of the Central Excise (Valuation) Rules, 1975 specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the very said bulk drug on the basis of DPCO price indicates that the facts of captive consumption of the bulk drugs and the value which the department applied in such cases was well known to the department. Therefore, we agree with the appellants contention that present notice is barred by limitation, (g) In view of the findings herein the Commissioner orders cannot be sustained on merit and demands would be barred by limitation. We find no justification for arriving at imposition of any penalties and or interest as determined by the learned Commissioner. 4. In view of our finding this appeal is allowed. From the above decision of this Tribunal, it is absolutely clear that for the purpose of comparable price DPCO price s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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