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TMI Blog2019 (10) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4(2) of the Central Excise Act, 1944. Thus it will be the sale price of the said goods stocked transferred to the depot, when sold to independent buyers and the sale price being the consideration for sale. Thus appellants have to satisfy the adjudicating authority with reference to the actual sale price from the depot for finalization of the value as per Section 4(2) - Hence in this respect also the matter needs to be remitted back to original authority for reconsideration. Matter remanded back to original authority for redetermination of the issues - appeal allowed by way of remand. - Appeal No. E/1780/2008-EX[DB] - FINAL ORDER NO.71320/2019 - Dated:- 28-6-2019 - Hon ble Mr. Ajay Sharma, Member (Judicial) And Hon ble Mr. Sanjiv Srivastava, Member (Technical) Shri Atul Lupta, Advocate Shri Utkarsh Malviya, Advocate, for the Appellant Shri Mohd. Altaf, Authorised Representative for the Respondent ORDER PER: SANJIV SRIVASTAVA This appeal is directed against the Order in Appeal No 107-CE/GZB/ 2008 dated 30.04.2008 of Commissioner Central Excise (Appeal) Ghaziabad. By the impugned order, Commissioner (Appeal) had upheld the Order in Original d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of 1% collected as depot charges by their consignment agent/ depot as an extra consideration and including the same in the assessable value; and v. Finalization of the assessment on the basis of the panchnama and annexure drawn on 28,o6.1996 by Preventive Officers in the appellant factory and statements of senior officials recorded during investigation and documents/ records resumed from the factory premises. 2.5 The show cause notice was adjudicated and assessments finalized by the Assistant Commissioner Central Excise Division V Ghaziabad vide Order in Original No 61/04 dated 27.07.2004, confirming demand of duty amounting to ₹ 15,59,85,133/- (BED) and ₹ 6,37,41,610/- (AED) Total amounting to ₹ 21,97,26,743/- for the period 01.04.1994 to 31.08.1997 and finalizing the assessments for this period. Appellants preferred appeal against this order before the Commissioner Central Excise (Appeal) who remanded the matter back to adjudicating authority for passing the order de novo in the light of directions given by the Tribunal by his Order in Appeal No 62/2005 dated 16.05.2005. 2.6 In the remand proceedings the adjudicating authority passed the Order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him, and has observed that findings given by the tribunal are general in nature. In earlier order dated 27.07.2004 also similar findings was recorded by the adjudicating authority, however Commissioner (Appeal) remanded the matter back to the adjudicating authority vide his order dated 16.05.2005. vi. The decisions of adjudicating authority and the Commissioner (Appeal) without considering the directions given by the Tribunal, is contrary to the decision of Apex Court in case of Kamalakshi Finance Corp [1991 (55) ELT 433 (SC)]. vii. In case revenue was aggrieved by the order of the Tribunal remanding the matter with above directions, then they should have got the decision quashed. Having not done so, they are bound to follow the said directions as have been held in the case of Indian Oil Corporation [2003 (152) ELT 128] Jai Bhawani Steel Enterprises {2003 (157) ELT 427 (T)]. viii. In respect of counts of yarns wherein comparable price of yarn was available irrespective of the quantum of sale at the factory gate, the said sale price should be adopted as value for the goods captively consumed as well as stock transferred to the depot. Adoption of the cost of production fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed admissible deductions on account of insurance, freight and discounts. xv. To arrive at assessable value foe captive consumption they had taken the normal price under Section 4(1) for determination of assessable value. xvi. In any case valuation is to be determined on the cost of production basis as per CAS-4. In respect of certain counts of yarn there is no factory gate or depot sale price available. In respect of these counts, the cost of production is only available option for determination of the assessable value. In terms of Supreme Court decision in case of Cadbury India Ltd [006 (200) ELT 353 (SC)] and Raymond Synthetics [2006(204) ELT 3 (SC)]. The value determined by applying this method should be as per CAS-4 even for the earlier periods. xvii. If CAS-4 is followed then adjudicating authority was incorrect in adding 18.83% towards interest charges and 25.97 % towards administrative charges. xviii. Further adding gross profit or notional profit of 10% to the determine the cost of production is contrary to settled principles that what is to be added is the net profit as per the Profit and Loss Account. Thus the order of adjudicating authority adding gross profi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has in view of the above the above remanded the matter back with direction that ratio of the decisions that in case of sale to independent buyer is available and t6ransaction value of such sale is not disputed, then that transaction value has to be adopted for determining the value of goods consumed captively and sold through the depot. iv. Contrary to the above direction revenue had issued the notice to the appellant as to why the cost of production should not be made the basis of assessment. v. They contested the costing adopted by the department. They also showed through evidences on records that undisputed transaction value of the yarn sold at factory gate is available. vi. Contrary to the directions given by the CESTAT, adjudicating authority ignored undisputed factory gate price available and adopted the cost of production. vii. When this order was challenged before Commissioner (Appeal), Commissioner (Appeal) remanded the matter back to adjudicating authority to decide the matter as per the directions contained in tribunal order. In remand proceedings adjudicating authority again passed the same order which has been up held by the appellate authority. viii. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the factory gate, depot or the consignment agents the same were against the negotiated price. The negotiated prices were higher than the prices adopted for determination of assessable value of goods captively consumed or for effecting stock transfer to depot. The prices charged from the depot/ consignment agents were much higher than the prices at which stock transfer has been done. All the aforesaid prices were before the below the cost of production. ii. Thus it is evident the yarn was being sold at below the cost price and valuation and finalization of assessment could not have been made under Rule 4. As there was no contemporaneous price available, revenue had no option but to adopt cost of production as basis of valuation. iii. Decision of Apex Court in case of FIAT India Pvt Ltd is squarely applicable in the present case. 5.1 We have considered the impugned order along with the submissions made in the appeal and during the course of arguments. 5.2 CESTAT while remanding the matter back to adjudicating authority for denovo consideration has vide its order dated 17.10.2003 made following observations: 1. In this appeal at the instance of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumed various statutory and private records for further scrutiny. The definition 'place of removal' was amended under the Finance Act 1996 w.e.f. 28.9.96. Duty, therefore, became payable with reference to the price ultimately realized by the depot without any deduction for freight from factory to depot. Under letter 13.1.97 the appellant requested the Assistant Commissioner to permit provisional assessments since the price of yarn fluctuate frequently and at the time of clearance from the factory, the actual selling price of yarn at depots/consignment agents was not available. Thereafter the appellant submitted monthly reconciliation charts to department and paid differential duty, if any. The Assistant Commissioner accepted the price declarations filed by the appellant provisionally. From October, 1996 onwards the appellant filed month-wise reconciliation charts showing the differential price and differential duty payable, if any, on month to month basis. 7. ... 8. The adjudicating authority discarded the price at factory gate sale for the reason that the price were negotiated from customer to customer and were not charged uniformly. It was also held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Tribunal has while remanding the matter noted that appellants were filing the price declarations and on the basis of price declarations made assessments were ordered to be made provisional. iii. Tribunal has noted the decisions referred in para 11 of its order and have without application of its mind to the said decisions and their applicability of the same to facts of case in hand have directed the adjudicating authority to consider the ratio of these decisions while deciding the case in de-novo proceedings. Since the matter was being remanded for following the principles of natural justice the observations made in para 11 cannot be said to be ratio decidendi of the decision of tribunal so as to be binding in the denovo proceedings. However there is clear direction to consider these decisions while deciding the matter afresh. 5.3 In view of the above observations we do not find any merits in the submission of the appellants that the impugned order and the order of adjudicating authority has been passed in the violation of the directions contained in the earlier order of tribunal remanding the matter back to adjudicating authority. 5.4 Assistant Commissioner has in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of sale in one individual month for the whole year and how such price can be treated as normal price. Further they have also not mentioned the blend of the yarn in their chart showing the calculation of Average selling rate. In view of these facts it appears that the normal price as contemplated in Section 4(1)(a) is not ascertainable in their case. 5.5 From the above quoted paras it is quite evident that, Adjudicating Authority has not brushed aside the decisions referred to by the Tribunal in its order remanding the matter but has found the said decision distinguishable on facts as in the cases pointed out by him there is not sale effected at the factory gate or from the depot to independent buyers. Appellants have neither in their appeal memo nor during the course of hearing contested this finding of the Assistant Commissioner. They have not produced an iota of evidence on the contrary to contradict these findings. The principle of law laid down by the said decisions are not disputed but what is in dispute is applicability of those to the facts of present case. In view of the above we do not find any merits in the submissions made by the Appellant relying on the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing related persons) who sell such goods in retail; (b) where the normal price of such goods is not ascertainable for the reason that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. (2) Where, in relation to any excisable goods, the price thereof for delivery at the place of removal is not known and the value thereof is determined with reference to the price for delivery at a place other than the place of removal, the cost of transportation from the place of removal to the place of delivery shall be excluded from such price. (3) ... Rule 6. If the value of the excisable goods under assessment cannot be determined under rule 4 or 5, and (a) .. (b) where the excisable goods are not sold by the assessee but are used or consumed by him or on his behalf in the production or manufacture of other articles, the value shall be based on the value of the (i) comparable goods produced and manufactured by the assessee or by any other assessee : Provided that in determining the value under this sub-clause the proper officer shall make such adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Generally speaking the expression normal price occurring in Section 4(1)(a) and (b) means the price at which goods are sold to the public. Where the sale to public is through dealers, the normal price would be the sale price to the dealer. 32. In Commissioner of Central Excise, Ahmedabad v. Xerographic Ltd., (2006) 9 SCC 556 = 2010 (257) E.L.T. 11 (S.C.), this Court has explained the concept of normal price. That was in the context of transaction between the related persons. It was observed that the existence of any extra commercial consideration while fixing a price would not amount to normal price. 33. In Burn Standard Co. Ltd. Anr. v. Union of India (1991) 3 SCC 467 = 1992 (60) E.L.T. 671 (S.C.), it is stated, Section 3 of the Act provides for levy of the duty of excise. It is a levy on goods produced or manufactured in India. Section 4 of the Act lays down the measure by reference to which the duty of excise is to be assessed. The duty of excise is linked and chargeable with reference to the value of the excisable goods and the value is further defined in express terms by the said section. In every case the fundamental criterion for computing the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions have to be satisfied for the case to fall under clause (a) of Section 4(1) keeping in view as to who is the related person within the meaning of clause (c) of Section 4(4) of the Act. Again if the price is not the sole consideration, then again clause (a) of Section 4(1) will not be applicable to arrive at the value of the excisable goods for the purpose of levy of duty of excise. 38. In Commissioner of Central Excise v. Ballarpur Industries Ltd., (2007) 8 SCC 89 = 2007 (215) E.L.T. 489 (S.C.), it is observed : 19. Under Section 4(1)(a) normal price was the basis of the assessable value. It was the price at which goods were ordinarily sold by the assessee to the buyer in the course of wholesale trade. Under Section 4(1)(b) it was provided that if the price was not ascertainable for the reason that such goods were not sold or for any other reason, the nearest equivalent thereof had to be determined in terms of the Valuation Rules, 1975. Therefore, Rule 57-CC has to be read in the context of Section 4(1) of the 1944 Act, as it stood at the relevant time. Section 4(1)(a) equated value to the normal price which in turn referred to goods being ordinarily sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... = 2002 (146) E.L.T. 503 (S.C.), it is held : 10. In our view, the provisions of the Act are very clear. Excise duty is payable on removal of goods. As there may be no sale at the time of removal, Section 4 of the Act lays down how the value has to be determined for the purposes of charging of excise duty. The main provision is Section 4(1)(a) which provides that the value would be the normal price thereof, that is, the price at which the goods are ordinarily sold by the assessee to a buyer in the course of a wholesale trade. Section 4(4)(e) clarifies that a sale to a dealer would be deemed to be wholesale trade. Therefore, the normal price would be the price at which the goods are sold in the market in the wholesale trade. Generally speaking, the normal price is the one at which goods are sold to the public. Here the sale to the public is through the dealers. So the normal price is the sale price to the dealer. The proviso, which has been relied upon by learned counsel, does not make any exception to this normal rule. All that the proviso provides is that if an assessee sells goods at different prices to different classes of buyers, then in respect of each such class of buyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to be the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal and where the assessee and the buyer have no interest directly or indirectly in the business of each other and the price is the sole consideration for the sale. Normal price, therefore, is the amount paid by the buyer for the purchase of goods. In the present case, it is the stand of the revenue that loss making price cannot be the normal price and that too when it is spread over for nearly five years and the consideration being only to penetrate the market and compete with other manufacturers who are manufacturing more or less similar cars and selling at a lower price. The existence of extra commercial consideration while fixing the price would not be the normal price as observed by this Court in Xerographic Ltd. s case (supra). If price is the sole consideration for the sale of goods and if there is no other consideration except the price for the sale of goods, then only provisions of Section 4(1)(a) of the Act can be applied. In fact, in Metal Box s case (supra) this Court has stated that under sub-Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold its goods to the whole sale trader cannot be accepted as normal price for the sale of cars. 5.8 In view of the above decision of the Apex Court we are not in position to agree with the contention of the Appellant that their factory gate sale price which is much below the cost of production of the goods can be termed as normal price for the purpose of determination of value under Section 4 of the Central Excise Act, 1944. In the present case appellants have sought to apply the said loss making price for determination of the value of the goods consumed captively. Assistant commissioner has in his order specifically recorded the reasons for rejecting the value as declared by the appellants for the goods consumed captively as follows: 5.9 The fact of undervaluation as determined by the Assistant Commissioner is based on the documents and records of the Appellant and their own submissions. Appellants have not disputed the said findings but have challenged the order merely on the ground with regards to the applicability of certain decisions wherein it has been held that value in case of captively consumed goods should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of franchisee agreements. In passing the Tribunal says that the goods were comparable. There is no discussion with regard to the shape and size of the bottles supplied to JIL. There is no discussion as to how the bottles supplied to JIL were comparable to the bottles supplied to the other buyers , like Dabur, Hamdard, Maaza, Kissan etc. The Tribunal has not even considered the resale of bottles by M/s. ASA to JIL. The Tribunal has not even examined the aspect of under-invoicing of sale prices. As stated above, there were instances of sale price charged to JIL being lower than the cost price which have not been discussed. In the circumstances, the Tribunal had erred in interfering with the adjudication done by the Commissioner. 16. Valuation and the prices get revised from time to time even within the unit. They are the factors which are known only to the management. These factors cannot be ascertained by site inspection by the department. Comparable goods under Rule 6(b) should be, as far as possible, identical goods. Simply because two goods are known by the same name or by the same genre, does not mean that they are comparable goods. Even if they are assumed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o companies like Dabur, Hamdard, Maaza, Kissan etc. were not comparable with the prices of the bottles captively consumed by the JIL. Further, as found by the Commissioner, the price lists filed by the assessee under part VI(a) were illusory as they were based on sales which did not exist or which were meager. Further, as found by the Commissioner, the price lists under part VI(a) filed by the assessee during 1991-92 had no comparable price lists. Further, all supplies shown under gate passes/invoices in favour of M/s. ASA were actually destined for JIL. Further, as found by the Commissioner, the franchisee agreements between JIL and the franchisee holders were not on principal to principal basis, particularly when the cost of packing was to be borne by JIL. The Commissioner was right in holding that the assessee was guilty of creating artificial buyers. Further, the Commissioner found that the bottles sold to other buyers like Dabur, Hamdard, Maaza, Kissan etc. were different from the bottles supplied to JIL; that although the capacity of a few bottles were common, they were different in terms of shape and size; they were also different in terms of cost of production; that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court was considered by the Hon ble Supreme Court in case of FIAT India referred above and after taking the note of this decision they have interpreted the term Normal Price used in the Section 4(1)(a). In this decision Apex Court was not concerned with the dispute in hand and hence the ratio of the said decision though applicable for determination of Normal Price, is not applicable for determination of the controversy in hand. ii. Guru Nanak Refrigeration [2003 (153) ELT 249 (SC)] The findings of the Apex Court in this decision and similar decision in case of Bisleri has been examined and explained by the Apex Court in Case of FIAT India, supra as follows: 64. Shri Vellapally and Shri Lakshmi Kumaran learned Counsel by placing reliance on Guru Nanak s case (supra) and Bisleri s case (supra) contends that the issue raised in these appeals is no more res integra. We cannot agree. In Guru Nanak s case, the facts are : the assessee therein was engaged in the manufacture of refrigeration and air-conditioning machinery. They had cleared the goods after approval of the price list by the department. The adjudicating authority being of the view that the assessable value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be for the revenue to determine on evidence whether the transaction is one where extra-commercial consideration have entered and if so, what should be the price to be taken into account as the value of the excisable article for the purpose of excise duty. 66. In our considered view, either the decision of Guru Nanak s case (supra) or the decision in Bisleri s case (supra) would assist the assessee in any manner whatsoever. We say so for the reason, that, in Guru Nanak s case, the department had accepted the price declared by the assessee and the narration of the facts both by the Tribunal and this Court would reveal that it was one time transaction and lastly, this Court itself has specifically observed that the view that they have taken, is primarily based on the facts and circumstances of the case. In the instant cases, the department never accepted the declared value. It is for this reason, provisional assessments were completed instead of accepting declared price by the assessee under Rule 9B of the Rules inter alia holding that during the enquiry, the assessees had admitted that they did not have any basis to arrive at the assessable value but they are selling their goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rey yarn captively consumed by the assessee on the basis of which assessable value of the product in question could be arrived at. 8. According to the assessee, apart from procuring the grey textured yarn from the open market, the assessee is also engaged in the manufacture of grey textured yarn itself and is using it in the manufacture of its finished product, viz., dyed yarn. It is also selling a portion of the grey textured yarn to unrelated buyers in the open market at the factory gate. According to the assessee since normal price in terms of Section 4(1)(a) of the Act was available in the form of sale at the factory gate, the price of the goods consumed captively had to be based on the sale price of the goods to unrelated buyers at the factory gate. Since in the present case undisputedly the facts as determined by the Assistant Commissioner show that some of the goods in question were not sold at all and in case of other goods captively consumed the sale was negligible we do not find that this decision will be applicable to the present set of facts. iv. Somaiya Organics Ltd [2007 (218) ELT 321 (SC)] In this decision Hon ble Apex Court has held as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and remit to CESTAT, which has come in place of CEGAT, for fresh consideration. In the remand proceedings tribunal considered the issue with respect to fixation of price for captively consumed goods and observed as follows: 4.1 Under Section 4(1)(a), where the Central Excise Duty on any goods is chargeable with reference to their value, such value shall be deemed to be the normal price which is the price at which such goods are ordinarily sold by the assessee in course of wholesale trade, for delivery at the time and place of removal, where the assessee and buyer are not related persons and the price is sole consideration for the sale. Thus, normal price should have the five ingredients (a) It should be the price at which the goods are the ordinarily sold i.e. the representative price. (b) It should be the price in course of wholesale trade. (c) It should be the price for delivery at the time and place of removal. (d) The transaction should be such that the price is the sole consideration for sale. (e) The transaction should be at arm s length. 4.2 As per proviso (i) of Section 4(1)(a), an assessee can have different prices for differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (ii) can be invoked only if the value cannot be determined under sub-clause (i). From the wordings of sub-clause (i) of Rule 6(b), it is clear that first it has to be seen as to whether the assessee is manufacturing and selling any goods which are comparable with the goods under assessment, which are being cleared for captive consumption and if such comparable good s are not being manufactured and sold by the assessee, the price of comparable goods manufactured and sold by other assesses can be taken into account. However, in terms of proviso to Rule 6(b)(i) while adopting the value of the comparable goods manufactured by the assessees, the adjustments as appear to be reasonable taking into consideration all the relevant factors including the difference, if any, in the material characteristics of the goods to be assessed and the comparable goods, have to be made. Tribunal in the case of CCE, Chandigarh v. AEE Civil Workshop-cum-store, PSEB, Mohali reported in 2000 (124) E.L.T. 895 (Tribunal) = 2000 (37) RLT 716 (CEGAT) has held that while determining the assessable value of goods being cleared for captive consumption under Rule 6(b)(i) on the basis of the value of the comparab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be added even if during the particular year there is loss. In this regard as per the Board Circular No. 258/92/96-CX., dated 30-10-96 the profit before tax as percentage of cost of production taken from the previous year s audited balance sheet is to be adopted. This decision very clearly lays down the scheme of Rule 6(b) and states that in case during the same period if the price of comparable goods, manufactured and cleared by the assessee himself or by any other person is available then that should form the basis of determination of assessable value and in case the same is not available cost of production should form the basis for determination of value of goods captively consumed. There is no dispute in respect of the law laid down in fact it is correct statement of law and needs to be followed. v. Essel Propack Ltd [2016 (338) ELT 162 (SC)] In this case Hon ble Apex Court has held that even a solitary sale price during the period of assessment can be the basis for determination of the value of the goods consumed captively under Rule 6(b)(i). vi. Sree Aravindh Steel (P) Ltd [2003 (157) ELT 214 (T)] The issue involved in the matter is not in respect of va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contracted prices for which price list were filed in part II. The issue in dispute was not even under consideration of bench. However during the argument counsel for appellant had vehemently argued that transaction price concept had been introduced with effect from 1.04.1994. This argument has been rejected by the bench in this decision stating as follows: 10. The appellants also refer to the post 1-4-1994 scenario where, according to them, invoice prices are accepted. This is not factually correct. After 1-4-1994, Section 4, admittedly has not changed but only procedural changes under Rule 173C were introduced dispensing with filing and approval of Price Lists. Since the law relating to valuation did not change, it is not correct to claim that any price in the invoice would be legally acceptable. That would be moving to a transaction value system as exists under Section 14 of Customs Act, 1962 read with Rule 4 thereof. On the other hand, Section 4 of CEA, 1944 prescribes a `normal i.e. even `deemed price. xiv. Fiat India Pvt Ltd [2004 (167) ELT 82 (T)] This decision has been reversed by the Hon ble Supreme Court in the decision referred earlier and hence reliance p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 5.10. 5.13 Appellants have in their appeal admitted that in respect of certain category of the goods consumed captively the value needs to be determined by application of method of cost construction as provided for in Rule 6(b)(ii). While making such a submission they have stated that even for determination of the value in terms of Rule 6(b)(ii), the determination should be made as per CAS-4 in terms of Apex Court decision in case of Cadbury India [2006 (200) ELT 353 (SC)]. We see no reason why this decision of Apex Court should not be applied in the present case. CAS-4 which is an accounting standard lays down the procedure for determination of various elements of cost and the manner for accounting the same for determination. The elements of costs which need to be added needed to be determined in terms of the law laid down by the Apex Court in case of Commissioner of Central excise vs Raymond Ltd [2006 (204) ELT 3 (SC)] and Asarwa Mills [2015 (319) ELT 216 9SC)]. The decision of Raymond has taken note of and followed the decision in case of Cadbury India. While considering the matter in remand proceedings concerned original authority shall take note of the above authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the packing cost of grey fabrics which had to be included in the value of processed fabrics has not been included. Keeping in view the aforesaid facts the amount of duty short paid on the processed fabrics (Chapter 52 and 55) and the woven cotton pile fabrics (chapter 58) was worked out and given in details in the charts annexed to this order as Annexure XXXVIII to XXXX. The amount of Central Excise duty on the aforesaid account comes to ₹ 2,17,76,862/- (BED) and ₹ 4,36,16,369/- (AED) Total ₹ 6,53,93,231/- which has not been paid by HRM. We are unable to find out what basis has been adopted by the adjudicating authority in the above paras to determine the value of processed fabrics actually sold to the independent buyer. However we can definitely say that he has not stated that any additional consideration in any form over and above the sale price was received from the independent buyer. We are not in position to uphold the demand made in respect of the processed fabrics which has been sold to independent buyers thereby set aside the same and remand the matter back to original authority. While remanding the issue in respect of processed fabric we make it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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