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TMI Blog2018 (2) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... for Appellant Shri M.H. Patil, Advocate for respondent ORDER Per : Ramesh Nair The fact of the case is that the respondent M/s. Bharat Sanchar Nigam Ltd. are holding Central Excise Registration for manufacture of excisable goods falling under Tariff Item No.85173000 of Central Excise Tariff Act, 1985. The goods were cleared to their units/branches located all over India for consumption/use to provide services to their customers, they adopted the valuation i.e. only the cost of production. The case of the department is that as there were no sale it appeared that the value of excisable goods manufactured by the respondent should have been determined as per Section 4(1) (b) of the Central Excise Act, 1944 read with Rule 11 and Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 i.e. by cost construction method. Accordingly the respondent were required to determine the assessable value of the excisable goods at 110% of the cost of production of the said goods. Accordingly they have undervalued the goods, consequently there is a short payment of duty to the tune of ₹ 1,32,86,489/-. The adjudicating authority dropped the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mr. Of C. Ex. Jallandhar 2014 (308) E.L.T. 133 (Tri.-Del.). He further submits that in a case where the department in the respondent s own case accepted the Tribunal decision of Kolkata Bench thereafter the Revenue cannot take a different stand. In this regard he relied on the following judgments: (i) Birla Corporation Ltd. Vs. Commissioner of Central Excise 2005 (186) E.L.T. 266 (S.C.) (ii) Daily Thanthi Vs. Commissioner of Customs, Chennai 2005 (186) E.L.T.268 (S.C.) (iii) Commissioner of C. Ex., Hyderabad Vs. Novapan Industries Ltd. 2007 (209) E.L.T. 161 (S.C.) (iv) Commissioner of C. Ex., Mumbai-V Vs. Swastik Rayon Processors 2007 (209) E.L.T. 163 (S.C.) (v) Jayaswal Neco Ltd. Vs. Commissioner of Central Excise, Nagpur 2006 (195) E.L.T.142 (S.C.) (vi) Boving Fouress Ltd. Vs. Commissioner of Central Excise, Chennai 2006 (202) E.L.T. 389 (S.C.) (vii) Commissioner of Customs, Chchin Vs. Atul Commodities Pvt. Ltd. 2006 (202) E.L.T.392 (Ker.) (viii) Commissioner of Central Excise, Mumbai Vs. Bigen Industries Ltd. 2006 (197) ELT 305 (S.C.) (ix) Commissioner of Central Excise, Meerut Vs. Titawi Sugar Complex 2003 (152) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the goods are not used by the respondent or on their behalf but by virtue of Rule 11 of the Central Excise (Valuation) Rules, the most appropriate Rule is Rule 8. Therefore in accordance with Rule 8 Valuation should be 110% of the cost of production . The Commissioner (Appeals) decided the matter solely on the basis of Tribunal s order in the respondent s case reported in 2007 (215) ELT 127 (Tri.-Kolkata) . The relevant order portion is reproduced below: Heard both sides. Shri N.C. Roychaudhary , ld. Sr. advocate appearing for M/s. BSNL states that w.e.f. 1-10-2000, the Department of Telephones was corporaterised to form the present appellant company M/s. BSNL. Prior to that date, the goods manufactured by the Department of Telephones was exempt from Excise duty. In between, there was confusion regarding excisability of the goods manufactured by M/s. BSNL. However, the duty is being paid w.e.f. 1-10-2000 and there is no contest regarding the dutiability of the products thereafter. 2. Shri Roychaudhary, however, contests that portion of the order which determines the value of the impugned goods by adding 15% under Rule 8 of the Central Excise (Valuation) Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by them. The appellant having lost before the authorities, carried the matter to the Tribunal. The Tribunal upheld the orders made by the authorities and took the view that PCC poles are marketable and where the work is done by job work, there may be some margin of profit in such activity forgetting the fact that in the present case Electricity Board itself was carrying on that job and has not assigned the job to any other person who can gain such profit and no business was carried on by the Electricity Board after manufacturing the poles and selling them out or dealing out with any other person. On the other hand, the poles were used for drawing electric lines over them for purpose of transmission of electricity. 2. In this view of the matter, we think the order of the Tribunal cannot be sustained. The order made by the Tribunal is, therefore, set aside and the enhancement to the extent of 10 per cent is deleted. 3. The appeal is allowed accordingly. Each party shall bear its own costs. The above judgment was passed on the issue of Valuation under Rule 6(b) of erstwhile Central Excise (Valuation) Rules, 1975 which reads as under: Where the excisable goods a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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