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TMI Blog2018 (2) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent followed the practice of clearing the unprocessed fabrics to its own unit viz. unit 2 for processing by following the cost construction method in which they applied the cost data basis of the latest available financial statements (previous year or year preceding the previous year). The Revenue contended that the respondent should apply the cost data of the respective period (current period) which would be available only after finalizing the financial records of the relevant period, after close of the financial year. 3. Heard the parties. 4. From perusal of the records, it appears that the show cause notice has been issued invoking extended period of limitation only for change of opinion on the part of the Revenue. As the show cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 read with Valuation Rules, 1975. The Department in both the Show Cause Notices has alleged that the noticee has under valued the said excisable goods in contravention of the provisions of Section 4 of Central Excise Act, 1944 read with the provisions of the Central Excise Valuation Rules, 1975 cleared to their own unit by declaring lower value which has according to the Department, resulted in the evasion of Central Excise duty. The assessee in their reply have mainly contended that they have paid duty on the basis of available actual costing datas prior to revision of price on 251h May 99 and 31st January 2000 and further produced the price declaration filed in Annexure - II under Rule 173C. It was further submitted by them that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eristic of the goods to be assessed and on the comparable goods; (ii) If the value cannot be determined under sub-clause (i), on the cost of production or manufacture including profits, if any, which the assessee would have normally earned on the sale of such goods; " There is no dispute that the goods were not sold but only transferred to their own unit and hence goods in question are to be treated as captively consumed and also that there are no comparable values that are available. In the price declarations as claimed by the assessee that they have been filed with the department, the column "comparable goods, if known, to the assessee is kept blank and assessable value of comparable goods has not been declared by the assessee which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1975. I find that the assessee has started paying duty from the period June 98 to June 99, July, 99 to June 2000 by declaring the value without resorting to provisional assessment though the goods were cleared as per Rule 6(b)(ii) of the Valuation Rules, 1975, read with Section 4 of the Central Excise Act, 1944. Further, the assessee has finalized the costing for the same period i.e. 1997-98, 1998-99 and revised grey fabrics cost on the basis of update finalized cost figures and thereafter stared paying duty on revised assessable value prospectively. As far as, the impugned goods are concerned, the said goods have been cleared by resorting to the valuations as per Rule 6(b)(ii) of Valuation Rules, 1975 and undoubtedly the duty paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely in question are payable by the assessee, i.e. M/s. Morarjee Gokuldas Spg. & Wvg. Co. Ltd. The assessee in their written submission contended that there is no involvement of any suppression of facts and further the question of extended period does not arise. They quoted some Tribunal Judgments in support of their arguments. I do not find these cases relevant to issue involved. I find that they were aware of the fact that value declared by them whether based on cost data or otherwise, was subjected to change on finalisation of cost Audit of relevant year. This was not disclosed to the department, while filing their price declaration. Immediately after revising the value due to the finalisation of costing, the same was also not brought ..... X X X X Extracts X X X X X X X X Extracts X X X X
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