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TMI Blog2019 (4) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Bhuvneshwar-2, as the Adjudicating Authority. Vide the impugned order, the ld. Adjudicating Authority has confirmed the demand under the proviso to sub-Section (1) of Section 11 A of the Central Excise Act, 1944 (for short Act ) along with the equal penalty under the provisions of Section 11 AC of the Act read with the Rule 25 of Central Excise Rules, 2002(for short Rules ). The interest was also order to be imposed at appropriate rate on the appellant under the provision of Section 11AB of the Act. The Period involved in the impugned appeal is from 1/4/2002 to 31/4/2007. 2. The brief facts of the case are that the appellant is engaged in manufacture of refractory bricks and Monolithi classifiable under Chapter Heading No. 6901.00 and 3816.00 of Central Excise Tariff Act, 1985( for short CETA). The customers of the appellant are manly integrated steel plant namely, M/s SAIL, RKL Steel Plant, Bhillai Steel plant, Bokaro Steel Plant etc. As per the purchase order of such customers the appellant gave guarantee for their product supplied to them so as to achieve the minimum heat life considering their ladle condition. The purchase order have two clauses i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essable value in terms of Section 4 of the Central Excise Act, as the part of transaction value [section 4(3) (d)] of the Act. The Revenue also contends that the decision stated by the appellant pertained to pre amendment Section 4 of the Act, and hence not relevant after the amendment of the Section 4 of the Act that is after 1/7/2000, the Revenue relied upon the decision of Hon ble Tribunal in case of Ubique Meta Pvt. Ltd vs. Commissioner of Central Excise, Bolpur [2007 (217) ELT 241(Tri- Kol) ] 7. On the contrary, ld. Advocate refers and relies to the various decisions referred by the Hon ble Tribunal on the very same issue pre and post amendment of the Section 4 of the Act. As the period involved in this case is post amendment to Section 4 of the Act we refer to decision of MPR Refractory vs. Commissioner of Central Excise, Hyderabad [2010 (262 ELT 274 (Tri-B)] wherein it is held as under. 3.Ld. Counsel appearing on behalf of the appellants would submit, that the dispute in this case is on the inclusion of bonus amount as part of sale consideration of the refractory bricks manufactured and sold to M/s. VSP. It is his submission that the brick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase orders specifically stipulated for performance guarantee bonus which indicated the supplier should stand guarantee for the number of heat per set as per the agreement and bonus shall be awarded if the life achieved is above guaranteed heats, it is also undisputed that the ladle management was entrusted to the appellant. We find that an identical issue was heard by the, Co-ordinate Bench of the Tribunal in. the case of Burn Standard Co. Ltd. (supra). The issue involved in that case is also the identical issue or bricks supplied to the purchasers. The ratio of the said decision is as under :- 3. Insofar as the third category of proforma invoice is concerned, we find, that the appellants used to issue such invoices claiming bonus from their buyers where it was found that the product (bricks) supplied to the later outperformed its guarantee period. The question whether the bonus is required to be included in the assessable value of the bricks is already covered in favour of the appellants by the Tribunal s decision. Jalan Refractories (P) Ltd. v. Commissioner [2001 (138) E.L.T. 327 (Tribunal) = 2000 (41) RLT 3 (CEGAT) which war followed by the Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessees are manufacturers of refractory bricks. In terms of the agreement entered with M/s. SAIL for manufacture and supply of refractory bricks, there was a clause for penalty/bonus in respect of the contract price. When the bricks perform beyond the specified number of heats, a performance bonus would be available to the assessee. The issue involved is whether the performance bonus received is includible in the assessable value or not. Revenue proceeded against the assessee for the period from March, 2001 to July, 2004 by way of issue of Show Cause Notice dated 12-12-2005. Extended period was invoked alleging suppression of facts. The Original Authority demanded differential duty of ₹ 9,50,966/- along with interest under Section 11AB in addition to imposing a penalty of ₹ 23,000/- under Section 11AC of the Central Excise Act, 1944. The assessees approached the Commissioner (Appeals). The Commissioner (Appeals) held that the performance bonus is includible in the assessable value. However, he gave a finding that only for the period prior to July, 2002,(date of audit of the records), longer period could be invoked and not for the period from July, 2002 to July, 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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