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TMI Blog2019 (4) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... re applicable, the application of Rule 4 will lead to a determination of a value which will be more consistent and in accordance with the parent statutory provisions of Section 4 of the Central Excise Act, 1944. Thus, during the disputed period, the valuation is required to be adopted in terms of Rule 4 ibid, on the basis of value of clearances to independent buyers. Time Limitation - Held that:- It is on record that the appellant has kept Department informed about their proposal for captive clearance of goods manufactured for purposes of civil constructions, repair and maintenance etc.. They have done so by means of a letter in December, 2005 - the Department will not be justified in alleging suppression against the appellant and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Central Excise (Valuation) Rules, 2000. The appellant determined the assessable value on the basis of Rule 8 read with Provisio to Rule 9 of the Valuation Rules. This Rule provides for the determination of assessable value on the basis of the cost of production of the goods with addition of 10% notional profit. The Department, however, was of the view that the valuation adopted by the appellant was incorrect. They were of the view that the valuation is to be determined in terms of Rule 4 of the Central Excise (Valuation) Rules, 2000, which provides for adopting the value of identical goods cleared to independent buyer. On these lines, differential duty payable by the appellant was demanded for clearances made during the period June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f valuation has since been decided against the appellant in subsequent decisions of the Tribunal. The Larger Bench of the Tribunal in the case of Ispat Industries Ltd. Vs. CCEx., Raigad reported in 2007 (209) ELT 185 (Tri.-LB), has held that when clearances to independent buyers are available for part of the goods manufactured and cleared, the same may be adopted for the goods captively consumed. This Larger Bench decision has been followed in subsequent decision of the Tribunal, such as, (a) CCEx., Aurangabad Vs. Sterlite Optical Technologies Ltd. : 2018 (359) ELT 723 (Tri.-Mumbai) and (b) Ultratech Cement Pvt. Ltd. Vs. CCEx., Bhavnagar : 2013 (295) ELT 470 (Tri.-Ahmd.). (iii) The ld.Counsel also submitted that even though the issue is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y consumed for use within the factory as well as captive mines for various activities, such as, construction, repair and maintenance activities. The appellant cleared such goods for captive consumption after payment of duty on the assessable value determined in terms of Rule 8 of the Central Excise Valuation Rules, 2000. This involved the computation of value on the basis of 110% of the cost of production of the goods ascertained on the basis of CAS-4 specification. However, the Department was of the view that the clearances to independent buyers were available on record for the period of dispute and as such, such value can be adopted for the clearances made captively. We find support for the view adopted by the Department in various decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for manufacture of other articles. We also agree with the contention of the assessee that Rule 8 will apply only in two situations, (a) where the goods are consumed by him in the same factory (captive consumption) or (b) where such goods are transferred to another factory for consumption in the manufacture of other articles on behalf of the assessee. In this case, it is not the case of the revenue that the goods were transferred to other units for manufacture of other articles on behalf of the assessee/appellant, i.e. the Dolvi Unit. We agree with the assessee s contention that the expression assessee , wherever it appears in the Central Excise Rules, applies to a particular factory, which is why different units belonging to one company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook further and regardless of the applicability or otherwise of Rule 8, the assessable value should have been determined in terms of Rule 4 of the Valuation Rules. 8. The ratio of the Larger Bench s decision has been subsequently followed by various Benches of the Tribunal. As such, we are of the view that during the disputed period, the valuation is required to be adopted in terms of Rule 4 ibid, on the basis of value of clearances to independent buyers. Accordingly, the issue is decided on merit in favour of the Revenue. 9. The appellant has made a strong plea for grant of benefit of time bar. It is on record that the appellant has kept Department informed about their proposal for captive clearance of goods manufactured for purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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