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TMI Blog2017 (6) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said provisions of the Rule 6, the said provisions are applicable to the goods which are not sold but are used or consumed by the assessee himself or on his behalf in the production or manufacture of other articles - Admittedly, in this case, the appellant is a job worker and job worked goods have been sent to the principal manufacturer. In that circumstance, although the goods were not sold by the appellant but are not used and consumed by the assessee himself or on his behalf in the production or manufacture of other articles. In that circumstance, the provisions of Rule 6 (b) (i) of the Valuation Rules are not attracted. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is completely incorrect, and it her submission that it has been held in a plethora of judgements that a higher court is not bound by the findings of the lower authorities. To support this, she relied on the decision of the Hon'ble Supreme Court in the case of Hindustan Lever Ltd. - 2000 (120) ELT 3 (SC). 3. She further placed reliance on the decision of the Tribunal in the case of Indo Gulf Corporation Ltd. Vs. CC - 2005 (182) ELT 77 (Tri.-Mum). 4. It is her further submission that this Tribunal in the case of MIL India Ltd. - 2003 (158) ELT 717 (Tri.-Del.), has followed the ratio of the decision of Hon'ble Supreme Court in Hindustan Lever Ltd. (supra). The said decision in the case of MIL India Ltd. (supra) has been now approved by the Hon'ble Supreme Court reported in 2007 (210) ELT 188 (SC). Therefore, it is prayed that the appellant is entitled to raise the issue of valuation and with regard to the non applicability of Rule 6 (b) (i) of the Valuation Rules in the instant case. 5. It is her submission that Rule 6 (b) (i) has no application in the present case as the said rule is applicable only when the excisable goods are not sold by the assessee but are used or consumed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s further submitted that it is a revenue neutral situation as whatever duty has been paid by the appellant is available to SBCH as cenvat credit. In that circumstance, it is prayed by the learned Counsel that the impugned order is to be set aside. 10. On the other hand, learned AR opposed the contention of the learned Counsel and submitted that vide order of this Tribunal dated 11.10.1999, this Tribunal has remanded the matter to the Commissioner (Appeals) to decide the issue whether the goods are comparable or not. Admittedly the Commissioner (Appeals) has found that the goods are comparable, in that circumstance, the provisions of Rule 6 (b) (i) of the Valuation Rules are applicable. Moreover, the appeal against the order of the Commissioner (Appeals) was dismissed by this Tribunal. Therefore, the order of the Commissioner (Appeals) has attained the finality by decision of this Tribunal vide order dated 29.12.2005. As the goods are comparable, the provisions of Rule 6 (b) (i) are applicable to the facts of the case. In these circumstances, the impugned order is to be upheld. 11. Heard both sides and considered the submissions. 12. On careful consideration of both sides, we fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustan Lever Ltd. the Apex Court has observed as under: 5. We will first deal with the objection of Shri Divan which is in the nature of a preliminary objection. As noted, he contended that the issue in question is finally decided inter se between the parties in an earlier proceedings which was not challenged by the Department; therefore, so far as the parties to these appeals are concerned, the matter stands concluded and the parties cannot reopen the said issue. It is true that this issue was decided by the Tribunal in the earlier round of litigation primarily relying upon two orders to which we have already made reference; the correctness of that finding was not challenged in this Court because the matter stood remanded to the original Authority. Inspite of this finding of the Tribunal, the parties again joined issue before the original Authority on this issue by producing materials like affidavits and made their submissions based on which the original Authority gave a finding against the respondent, who took the matter in appeal before the Appellate Commissioner and having lost before the Appellate Commissioner, the respondent once again took the matter before the Tribunal. Fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs contained in the order of the remand would not be binding on the said superior authority which is entitled to go into the entire matter afresh without being shackled by the findings of the lower appellate authority as recorded in the order of remand. It, therefore, follows that in the present instance this Tribunal, in considering the entire issue, is entitled to go into the whole matter afresh and would not be bound by the opinion of the Appellate Collector as recorded in the remand order. We have already seen that this Tribunal has held, in the case of these very appellants themselves, against them on the question of classification and liability for payment of duty. The said decision is binding on us, unless set aside by the Supreme Court." 4. In the light of the ratio of the binding authorities, we are inclined to accept the contention raised by the appellant that it is open to the appellant to contend before the Tribunal and raise the contention regarding dutiability of bought out item in this appeal before this Tribunal even though they have not challenged the order passed by the Commissioner (Appeals), dated 22-3-2000 remanding the matter. In the light of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturer. In that circumstance, although the goods were not sold by the appellant but are not used and consumed by the assessee himself or on his behalf in the production or manufacture of other articles. In that circumstance, the provisions of Rule 6 (b) (i) of the Valuation Rules are not attracted. The same view has been taken by this Tribunal in the case of Kandivali Metal Works (supra) which has been relied upon by the appellant in the earlier round of litigation before this Tribunal wherein this Tribunal has observed as under: 2. The expression comparable goods used by both' lower authorities appears to have been borrowed from Rule 6(b)(i) of the Central Excise (Valuation) Rules, 1975. According to 6(b)(i) of the Rules assessable value shall be based on the value of the comparable goods produced or manufactured by the assessee or by any other assessee. This method of valuation has precedence over the method prescribed in Rule 6(b)(ii) of the Rules, namely, cost of production including profits, if any. But it has to be noticed that Rule 6(b) of the Rules applies only in one situation, namely, where the excisable goods are not sold by the assessee but are used or consumed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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