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TMI Blog2023 (6) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. Thus, it is found that the Adjudicating Authority has gone beyond the scope of the Show Cause Notice. In case the learned Commissioner was to reject the claim totally, he should have put the appellants to proper notice in terms of principles of natural justice. As the proposal and final order are contrary to each other, in the instance case, the principles of natural justice have been grossly violated. Moreover, the Adjudicating Authority has not given any finding, whatsoever, on the Statutory Auditor s certificate, rebutting the certificate on the basis of cogent and reliable data and reasoning. The only finding that the Adjudicating Authority gives is that whereas the application is dated 29.09.2009, the Statutory Auditor s report is dated 30.09.2009 and therefore, it cannot be relied upon. Having held that the rejection of the appellant s claim in the impugned order is incorrect, it is required to fix the percentage of value addition. It is found that the appellants vide application dated 29.09.2009 and during the course of personal hearing on 11.05.2010, submitted that the value addition as applicable to them would be 58.60%, if actual sale value is taken or 62.65%, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss account; thus, the percentage of value addition was arrived at 58.60; 62.65% as submitted vide letter dated 29.09.2009 was an alternate figure, in case the sale value is taken as MRP; Commissioner has wrongly held that the appellants were changing their stance by giving various figures of value addition; in fact, there are no different figures submitted. Sale value of goods refers to the goods cleared and not actual goods sold in terms of Explanation-2 Para 2.1 of the Notification; rejection of value addition on the grounds that as no sale has taken place at the Samba unit is baseless. Adjusted balance sheet/ profit loss account is an extract for the Samba unit as the balance sheet of the company is prepared for all the units together; Commissioner ignored the fact that Statutory Auditors have audited the accounts on 08.05.2009; it is a settled proposition of law that once Department has not rebutted the evidence like Statutory Auditor s certification as required in the notification, the evidence submitted by the assessee has to be accepted as held in Crane Betel Nut Powder Works 2011 (274) ELT 113 (Tri.); 2012 (279) ELT 487 (AP); 2014 (305) ELT A109 (SC). Statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following findings: In terms of Para 2.1 (l) of the Notification, it is the obligation of the manufacturer to stake their claim along with necessary documents and certificates and the appellants have failed to do so; burden to prove the claim is squarely on the appellants. The word Sale is not defined under notification and therefore, the definition requires to be taken from Section 2 of Central Excise Act; the appellants claim of two value additions cannot be accepted; MRP value as contemplated under Section 4A of Central Excise Act, 1944 is a notional value and the same cannot be considered as a value for the purpose of the notification. The application made by the appellants is dated 29.09.2009 and whereas the audited balance sheets are 30.09.2009 and therefore, cannot be accepted to be accurate in respect of various figures submitted. As taken in the adjusted balance sheet, gross revenue cannot be considered as sale value; sale value requires to exclude Central Excise, VAT and other taxes; distribution of cost plus 10% on an average basis to all the sales is not acceptable. 6. We find that Commissioner has not discussed, in the impugned order, as to whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner. We find that in terms of second Proviso to Para 2.1 (1), the manufacturer has to support his claim for a special rate with a certificate from his Statutory Auditor containing a calculation of value addition in the case of goods for which claim is made, based on the audited balance sheet of the unit for the preceding financial year. We find that the appellants have submitted the necessary certificate, it was therefore, incumbent upon the Adjudicating Authority to go through the Statutory Auditor s report; to question the figures adopted by the Statutory Auditor; to ask for clarification of the appellants before rejecting the same. Therefore, we find that Commissioner had no justified reasons to reject the Statutory Auditor s certificate. For this reason, we find that the Adjudicating Authority has completely ignored the provisions of the notification and therefore, such an order is liable to set aside. 8. We find that Explanation under Para 4 of the Notification reads as under: For the purpose of this paragraph, the actual value addition in respect of said goods shall be calculated on the basis of the financial records of the preceding financial year, takin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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