9911796707
TMI Blog2018 (7) TMI 1937X X X X Extracts X X X X X X X X Extracts X X X X ..... c. In view of above two are the categorically distinguishable from where there is suppression etc., and other having no such ingredients, and therefore, the rationale of judgment cannot have a general application. * That Commissioner (appeal) has failed to appreciate that the adjudicating authority has confirmed the demand under section 11 A(2) of the Central Excise Act, 1994( hereinafter referred to as 'Act') by holding that assessee have wilfully suppressed/mis-declared the relevant fact from the Department with intend to evade the payment of duty which attracted the provision of Section 11A of the Act. 3. The relevant fact of the case, are that the respondent is having factories at Jamshedpur and Ranchi; (a) Usha Alloys and Steel Divisions, Gamariaya, Jamshedpur (for short first factory) where the respondent manufactures steel billets and steel wire rods of different varities (b) Straight bar and Wire Mill Division, Gamaharia, Jamshedpur (in short second factory) where the respondent manufactures straight bar and rods. For the manufacture of final products of the second factory, steel billets and wire rods manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of Central Excise Duty under cover of Central Excise invoice. Steel billets and wire rods manufactured by the first factory were cleared by the respondent inter alia, to its independent wholesale buyers or to its depot. A part of the of the said billets and wire rods manufactured at the first factory was also being transferred by way of inter-unit transfer to second and third factory on payment of Central Excise Duty. When the goods are received by the second and third factories, whatever duties were paid at the first factory was being availed by way of Cenvat Credit at respective receiving factory. The final product of the second and third factory were being cleared on payment of duty after availing the Cenvat Credit on said inputs which have been procured from the first factory. Regarding the inter-unit transfer of the input, respondent had followed the system of 'transfer price' which was more or less equivalent to prevailing market price at or about the time of removal. This fact was known to the Department as units had been visited by the Central Excise officers and AG Audit teams, who have not objected the method being adopted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This decision of Tribunal was upheld by Hon'ble Supreme Court in case of Commissioner vs. Anglo French Textile-2018(366) ELT 301(SC), wherein it has held that the transfer of goods to the sister unit from the appellant will have a Revenue neutrality. It has also stated that when the demand itself is not sustainable there is no question of imposing any penalty and the reliance was placed on the following decisions; (i) C.C.E. vs. Subray Catal Chemical Pvt. Ltd. 2010 (261) ELT 1170 (Tri-Ahmd) (ii) Gujrat Narmada Fertilizers Co. Ltd. vs. C.C.E. 2010 (262) ELT 829 (Tri.Ahmd) (iii) C.C.E. & C. Vs. Gujrat Narmada Fertilizers Co. Ltd.-2012 (285) ELT 336 (Guj) 12. The Department in this case entertained a view that the pricing of the goods which were sold to their sister unit on payment of Central Excise Duty, after the introduction of Central Excise valuation Rule with effect from 1st July, 2000, would be under CAS 4 method. In this case it is on record that appellant has also sold the same goods to the independent buyer also on the same price, and therefore, we find there is non applicability Rule 8 of the Central Excise Valuation Rules, by adopting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valent for the independent buyers. The first unit used to clear the goods on payment of duty and the second unit used to take credit of equivalent amount the final product of the second factory was being cleared on payment of applicable rate of duty. Department, however, the system of valuation was objected upon by the Department in view of Rule 8 of the Valuation Rule. In order to avoid the further litigation with the Department the assessee paid the differential amount of duty as demanded by the Department on account of the fact that the same amount was paid as Cenvat Credit to second unit. The respondent was visited with the Show Cause Notices demanding the duty along with the interest and penalty and the same was confirmed by the Adjudicating Authority. It is the submission of the Ld. Advocate on behalf of the appellant that the issue is no more res-integra in view of the decision of Hon'ble Cestat in case of Steel Complex Ltd. vs. CCE has been upheld by Hon'Ble Supreme Court is referred below; "In the grounds of appeal, it is contented that the market prices were lower than the value determined on the basis of cost of production as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.Ahmd). (iii) C.C.E. & C. vs. Gujrat Narmada Fertlizers Co. Ltd.-2012 (285) ELT 336 (Guj). 16. On the other hand Ld. AR has reiterated the ground contained in the impugned order and such as the appellant has himself paid the duty, the Adjudicating Authority has rightly imposed the penalty and interest on the account of short levy of the duty. 17. We have heard the parts and parties the appeal record. 18. The issue involved in this case is regarding the valuation adopted by the appellant in case of inter unit transfer of the goods as to whether under Rule 8 of the Valuation Rule or any provision of Section 4 (a) of the Act. It is held in the case of Ispat Industry (supra) that the Rule 8 of the Central Excise Valuation Rule is applicable only in case where the entire production is being transfer to their sister units. On the other hand there is no sale to the independent buyers. Where there is the sale to the independent buyers the Valuation is required to be confirmed under the provisions of the Section 4 (a) of the Central Excise Act and not under valuation Rule. This issue has been resolved by the decision of Larger Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
