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TMI Blog2019 (4) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... January 2009 to March 2009, which was challenged on behalf of the department was disposed off by order in appeal no. YDB/109 & 110/Bel/2010 dated 25 February 2010 of Commissioner of Central Excise (Appeals), Mumbai Zone-II, and, while dismissing the challenge to finalisation of assessment on the actual transaction value of the goods sold at the depot, allowed the plea in relation to assessment of unsold goods also being subjected finalised with the direction for that to remain as provisional. In effect, the first appellate authority held that, in finalizing the provisional assessment, there was no requirement to resort to the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. Continuing the grievance, Revenue is now before us challenging the impugned order for having approved the adoption of transaction value to finalise the 'provisional assessment' of goods sold at the depots instead of ascertainment under rule 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. 2. According to Learned Authorised Representative, duty liability under section 4 of Central Excise Act, 1944 was, consequent upon amendment of 1st July 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 4 of Central Excise Act, 1944. We have no doubt that 'place of removal' is not the depot in the impugned clearances and, even if it was, the definition of 'time of removal' would render it irrelevant. The decision of the Tribunal in re Century Laminating Co Ltd, pertaining to the pre-amended version of section 4 of Central Excise Act, 1944, was on the admissibility of various deductions which is not within the sphere of our determination. In re Wearwell Tyres & Tubes Industries P Ltd, the Tribunal, dealing with the amended section 4 of Central Excise Act, 1944, held that the exclusion of discounts cannot be at variance with trade practice which is known prior to removal of goods and having been actually expended by the manufacturer. The decision in re Samtel India Ltd is in a similar vein. 4. Learned Consultant for the respondent relies upon the provisions of section 4 of Central Excise Act, 1944, on the decisions of the Hon'ble Supreme Court in Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd [2007 (218) ELT 641 (SC)] and in Paper Products Ltd v. Commissioner of Central Excise [1999 (112) ELT 765 (SC)] and the acceptance by the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad valorem taxes. The bone of contention is dictated by the chasm between revenue maximisation that motivates tax authorities and liability minimisation on the part of the assessee. The 'measure of value' being, at best, a legislated approximation, strict adherence to the valuation scheme is a necessity failing which tax collection would be discriminating and whimsical. Assessment is a product of rate of duty on valuation; valuation is to be accepted to extent of conformity of circumstances with the phraseology adopted in the valuation provision of the taxing statute. In the scheme of duties of central excise leviable on ad valorem basis and 'self-removal procedure', determination of duty liability by the assessee is a pre-requisite for discharge thereof. Under rule 6 of Central Excise Rules, 2002, the assessee is required to assess itself to duty liability on each clearance and under rule 7 of Central Excise Rules, 2002, the assessee has the option of seeking 'provisional assessment' should 'rate of duty' or 'valuation' be in doubt. There is, thus, statutorily no difference between a provisional assessment under rule 6 of Central Excise Rules, 2002 and a final assessment under rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If that was the intent of the scheme, there would be no requirement to resort to provisional assessment at all. That provisional assessment has been sought from, and was allowed by, the proper officer implies the immediate non-availability of confirmation for assessment but not non-ascertainability of value. 8. From the above, it would appear that the scheme of valuation provides for assessment of duty on the transaction value which conforms to the parameters laid down in section 4 (1) of Central Excise Act, 1944. Such assessment may be final or could be deferred for final assessment through recourse to rule 7 of Central Excise Rules, 2002. In either situation, the transaction value is to be adopted unless at the time of clearance and assessment, under rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2002 there is lack of conformity to the word picture depicted in section 4(1)(a) of Central Excise Act, 1944. Therefore, it is only when the assessee opts for final assessment in the first instance despite doubt about rate of duty or valuation at the place of removal that recourse may be had to Central Excise Valuation (Determination of Price of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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