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TMI Blog2018 (10) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... and where the assessable value and price of goods is the sole consideration of sale - In the present case of the appellant, the condition of sale of excisable goods is not being satisfied as manufactured goods are not being sold by the appellant assessee but used by them captively. The Rule 8 of Central Excise Valuation Rules specifically provides that where the excisable goods are not sold by the assessee but are used for consumption by him or on his behalf in the production or manufacture of other articles, the value shall be 110 % of the cost of production or manufacture of such goods - for determining the assessable value under the present situation under Rule 8 of Central Excise Valuation Rules, 2000 is the closest and more appropriate because the basic requirement of Rule 8 of Central Excise Valuation Rules, 2008 that (a) that the goods are not sold and (b) the goods are used for consumption by appellant assessee, are satisfied - Since the goods are being used by the appellant assessee himself, it is not necessary that same need to be used only for the production and manufacture of other articles. The method adopted by the appellant assessee for determination of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he previous period i.e. 2004-2005 to 2007-2008, for which the show cause notice was issued earlier and adjudicated by the competent authority. 2. The assessee had shown total cost of production of car carriers in CAS 4 for the years 2008-2009 and 2009-2010 as under: Sr. No. Year Quantity manufactured Quantity cleared Total cost of production 1. 2008-2009 10 10 72,62,255 2. 2009-2010 15 15 110,15,346 Total 25 25 1,82,77,601 Accordingly, the value per Car Carrier Body value works out as under: Sr. No. Year Total cost of production (Quantity manufactured) Quantity cleared cost of production per car carrier 1. 2008-2009 72,62,255 10 7,26,225 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evious SCN covering the assessment years 2004-2005 to 2007-2008; Secondly, taking the previously adopted value, they have increased the value on the basis of cost inflation index as adopted by Income Tax department in their official gazette for the financial year 2008-2009 and 2009-2010. The show cause notice demanding duty of ₹ 35,38,452/- came to be issued which was adjudicated by the Joint Commissioner vide their order dated 11.01.2016 wherein the learned adjudicating authority has confirmed the Central Excise duty of ₹ 35,38,453/- along with interest under section 11AB and equal amount of penalty has also been imposed under section 11AC of the Central Excise Act, 1944. The appellant assessee has gone in appeal before the Commissioner (Appeals) which was adjudicated vide order dated 19.4.2018 confirming the charges as confirmed in order-in-original. The appellant-assessee is before us against the impugned order of the Commissioner (Appeals). 6. It has been the main contention of the learned advocate of the assessee that the valuation of the car carrier bodies adopted by them is as per the legal provisions of Central Excise Act read with Central Excise valuation Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e value arrived by the appellant assessee for payment of Central Excise duty, on the car carrier body build by them, as per the provisions of Rule 8 of Central Excise Rules, 2000 read with section 4 of Central Excise Act, 1944 is correct as per provisions of law or not and secondly; whether the demand of duty is hit by bar of limitation. 9. It is seen that section 4(1)a of the Central Excise Act provides that assessable value of final products shall be the transaction value where the goods are sold by the assessee for delivery within time and place of removal and where the assessable value and price of goods is the sole consideration of sale. It can be seen that the applicability of transaction value in a particular case is subject to satisfaction of following four conditions, namely: (1) Sale of excisable goods; (2) Goods should be sold at the time and place of delivery; (3) The assessee and buyer are not related to each other; and (4) price of the goods is sole consideration of the sales. 10. In case the above conditions are not met, the assessable value is to be determined in terms of section 4(1)(b) of the Central Excise Act read with Central Excise Valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Department for determination of assessable value under the legal premise of section 4 of Central Excise Act read with Valuation Rules of Central Excise Valuation Rules, 2000 and therefore, we find that Commissioner (Appeals) has travelled beyond the legal premise for determining the assessable value of the excisable products. 11. We find that the method adopted by the appellant assessee for determination of assessable value under Section 4 of Central Excise Act, 1944, is legally correct and thus we also find that they have rightly discharged their Central Excise duty liability. In view of the above, we do not find any merit in the order of Commissioner (Appeals) and same is set aside. The other argument raised by the learned advocate regarding applicability of notification 6/2006 dated 1.3.2006 we find that since same has not been subject matter either of the order in original or order of Commissioner (Appeals), therefore, we do not find any justification in commenting on the applicability of above notification in this case. 12. We also find that the demand is hit by period of limitation as on the same issue the department had issued a show cause notice earlier co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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