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TMI Blog2023 (5) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... fter referred to as 'the Valuation Rules'), viz. independent sale price of such goods. However, the department vide the following two Show Cause Notices alleged that Rule 8 of Valuation Rules was applicable on such clearances, and the Appellant was liable to pay the differential excise duty in terms of Rule 8 of the Valuation Rules, as demanded: * SCN C. No. II (8) 25/AE/CE/BOL/2006/8246 dt. 02/08/2007 proposing demand of excise duty of Rs. 26,30,268/- for the period July 2006 to August 2006; * SCN C. No. II (8) 25/AE/CE/BOL/2006/11067 dt. 14/09/2007 proposing demand of excise duty of Rs. 2,37,82,742/- for the period January 2005 to June 2006. 2. The Show Cause notices were adjudicated vide the common Order in Original No. 44-45/Commr/BOL/09 dated 27.02.2009 wherein the proposed demands were confirmed. In the course of adjudication, the Ld. Commissioner agreed with the proposition that in case identical supplies were made to the independent buyers as well as job workers, Rule 4 was applicable. However, to ascertain whether the same goods which were sent by the Appellant to the job workers were also sold to independent parties, the verification report of the jurisdictional As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stock transfer value. 4. In some of these annexures, the Appellant appeared to have paid excess duty than was due and in others, short payment. Based on the above fact-finding report, the Ld. Commissioner ignored the Annexures which showed excess payment of duty and confirmed the demand in relation to the Annexures which showed short payment. Thus, in terms of the OIO dated 27.02.2009, the Appellant was held liable for payment of excise duty of Rs. 21,65,587/- in respect of SCN dated 02.08.2007 and Rs. 1,31,59,371/- in respect of SCN dated 14.09.2007, along with interest and equal penalty. 5. The Appellant being aggrieved by such order is before us. 6. The Ld. Advocate for the Appellant submits that: * Since there was no sale transaction between the Appellant and job-workers, therefore, transaction value was not available, and the valuation needed to be adopted in terms of the Valuation Rules. The Appellant valued the goods at the comparable values at which the said goods were sold to the independent parties in terms of Rule 4, while making adjustments in certain cases to account for the grades of material, at times. In this regard, the Appellant relied on the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Ahmd.); * Vinir Engineering Pvt. Ltd. Vs. CCE, Bangalore 2004 (168) ELT 34 (Tri.-Bang.); * Angadpal Industries Ltd. Vs. CCE, Thane-II 2012 (280) ELT 542 (Tri.-Mum.); * ToyotaKirloskar Auto Parts Pvt. Ltd. Vs. CCE, LTU Bang. 2012 (276) ELT 332 (Kar.); * Hindustan Zinc Ltd. Vs. CCE, Jaipur 2016 (336) ELT 328 (Tri.-Del.); * Essar Steel India Ltd. Vs. CCE, Raipur 2017 (345) ELT 139 (Tri.-Del.); * SangamSpinners Vs. CCE, Jaipur-II 2016 (344) ELT 623 (Tri.-Del.) * The entire issue is revenue neutral in nature as the job worker of the Appellant is eligible to claim CENVAT Credit on the duty paid by the Appellant and the Appellant further avails the Cenvat credit of the duty paid by the job-worker. Thus, in such a scenario demand is not sustainable as held by: * Cce, Pune Vs. Coca-Cola India Pvt. Ltd., 2007 (213) Elt 490 (S.C.); * Cce & C. Vadodara-II Vs. Indeos Abs Ltd. 2010 (254) ELT 628 (Guj.), affirmedby the Hon'ble Supreme Court in [2011 (267) E.L.T. A155 (S.C.)] * The SCN dated 14.09.2009 is wholly time barred and that extended period of limitation has been erroneously invoked vide the said SCN, since on the identical issue previously the department had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgments which are directly applicable to the present case are referred hereunder: (a) Pr. Commr. of CGST & CE Vs. Godrej Consumer Products Ltd. 2019 (367) ELT 985 (MP) - wherein the Hon'ble High Court upheld the Tribunal's order relying on the following observations made in the case of Essar Steel India Ltd. v. Commissioner, 2017 (345) ELT 139 (Tribunal): "10. The next issue for decision is on the quantification of differential duty. Even though there is no provisional assessment in the present case, the duty determination on the inter-unit transfer is made on annual costing. As such when the Department arrived at cost on annual average basis the duty liability, excess or shortage has also to be determined on such basis. It is not tenable while for arriving at per unit duty liability the whole year data is considered for costing, for total duty liability only months when short payment was noticed were considered. In other words when CAS-4 based annual costing formed basis for arriving transaction value, the overall duty liability/short payment should be arrived at after considering duty already paid during that year on such goods. We find the reasoning given by the Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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