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TMI Blog2018 (10) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... /s SPL are related persons and has under-valued the goods manufactured by them and supplied to each other by paying excise duty on cost construction method, i.e. by adding landed cost of raw material and job work charges - Held that:- It is not a disputed fact that the Appellant and M/s SPL have sold the similar excisable goods to other independent buyers. In such case, when the other buyers of the similar goods are available, the assessable value cannot be determined in terms of Section 4(1)(a) as the same is applicable only when the goods are sold only through related persons, which is not the case here. Even if the demands are to be made the same should have been computed by taking assessable value of the goods to the nearest ascertainable equivalent value thereof determined in such manner, as may be prescribed - Since there is no major difference between the goods sold to independent buyers and allegedly related person M/s SPL and the prices are comparable after taking into consideration the discount and other expenses, we do not find any reason to demand duty from the Appellant. The discounts by the Appellant to M/s SPL are normal business transaction as has been upheld by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed to demand differential duties on the value of difference between sale price to the related person and the value adopted by Appellant at the time of clearance of goods. The issue travelled upto Tribunal back forth and this is the 5th round of litigation before us. In present appeals the demands are concerned only in respect of Show Cause Notice No. 12.05.98 and 15.10.98 for ₹ 60,31,775.30 + ₹ 24,15,440/- respectively and are concerned with M/s GSML only. 3. Shri Willingdon, Ld. Counsel appearing for the Appellant, submits that in case of demand of ₹ 24,15,440/- covered by the show cause notices dt 15.10.1998, the demand was confirmed vide OIO dt 31.01.2002 against which the appeal was filed by the Appellant and M/s SPL before the Commissioner (Appeals), who set aside the OIO vide Order-in-Appeal dt. 18.09.2003 holding that as per Tribunal s order dt 21.07.2003 in case of job work, the concept of related person is not applicable and relevant. The revenue filed appeal against said Order-in-appeal only against M/s SPL and no separate appeal was filed against the Appellant. The Order-in-appeal dt. 18.09.2003 in case of Appellant has thus attained final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y single appeal No. E/243/2004 in case of M/s SPL only against common OIA dt 18.09.2003. The Appellant therefore filed an appeal before the Tribunal, who vide order dated 09.07.2013, looking to the apparent mistake remanded the matter back to the adjudicating authority with an observation that the finding of the adjudicating authority should not have been based on the finding made by his predecessor order which has become non-est. The adjudicating authority vide impugned OIO dated 08.02.2017 held that the issue related to question of determination of alleged relationship cannot be gone into as the said issue of related persons status was determined in OIO dt 30.04.2007 and the appeal filed by the parties was rejected on the ground of non-compliance with the provision of Section 35(F) vide Tribunal order dt 25.09.2008. He held that the said issue of related persons is no longer res- integra and stands already determined by the appropriate authority in the adjudication order. That the relationship determined A B persons cannot be re-opened by a arguing that it was not determined between B A. 5. Ld. Counsel Shri Willingdon further contended that from the Order-in-Originals of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s India Vs. CC 2003 (158) ELT 325 (T) and Garg Steel Industries Vs. CC 1998 (74) ECR 508 (T) in support of his contention. He thus submits that the demand is therefore required to be set aside. He also submits that the demand under Section 4 (1) (a) as made by the revenue is not sustainable as the same is applicable only where the sale is through related person. That the price charged by them to M/s SPL is clearly equivalent to prices charged by them to the independent buyers and there is no major difference looking into the discounted prices and various expenses involved in case of sale made to independent buyers. He also submits that the demands are time barred. 7. Per Contra Shri L. Patra, Ld. AR appearing for the revenue supports the impugned order. He submits that the findings of the order passed in 2007 are applicable to the present case. That since the relationship between the parties has to be gone into therefore the sale price of the principal shall be assessable value and not the value arrived at cost construction method. 8. Heard both the sides and perused the records. We find that the Show Cause Notice dated 15.10.1998 was issued to the Appellant and M/s SPL where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the adjudicating authority in subsequent proceedings. We find that the Tribunal remanded the case twice back to the adjudicating authority for considering the case afresh. However, the adjudicating authority on both the occasions relied upon the findings of 2007 inspite of the said order being rendered ineffective by the order dated 08.09.2010 of the Tribunal. It clearly transpires that the CESTAT s direction given in 2010 order was not followed by the adjudicating authority inspite of the fact that the adjudication order of 2007 was no more operative. We find that the adjudicating authority, in order to place reliance of 2007 adjudication order, had taken the ground that in case of M/s SPL, the Tribunal had dismissed the appeal for want of pre-deposit. This reasoning of the adjudication authority is absolutely perverse as in the Appellant s own case of 2007, the adjudication order was set aside and the case was remanded for denovo proceeding and hence cannot be relied upon. We also find that the matter has come before the Tribunal for the fifth time and has been in litigation for last 20 years. We thus deem it appropriate to decide the same on merits. The Revenue s c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s SPL are normal business transaction as has been upheld by the Tribunal in various judgments in the case of CCE Vs. Indian Turpentine Resin Co. Ltd -1989 (41) ELT 678 (T); Powertech International Vs. CCE 2001 (45) RLT 230 (Cegat) ; Standard Electric Appliances Vs. Supdt. of Central Excise 1986 (23) ELT 302 (Mad); Premabhai Chhibabhai Tangal Vs. UOI -1994 (70) ELT 515 (Bom); UOI Vs Hind Lamps Limited 1981 (8) ELT 11 (Del). We are thus of the view that the demands raised against the Appellant does not sustain and are set aside. We also find that in the case of Show Cause Notice dt 12.05.1998, the period involved is April 1993 to March 1998 and the Appellants were under bona-fide belief that in case of job work, the concept of related persons is not applicable and the value has to be determined as per Hon ble Supreme Court judgment in the case of Ujagar Prints 1989 (39) ELT 493 (SC). Thus, the Appellant had bona-fide belief for valuation of goods manufactured under job work. The demands beyond normal period of limitation are thus held to be patently time barred. Our views are also based upon the Tribunal order in case of Prafful Industries Ltd Vs CCE 2000 (118) ELT97 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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