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TMI Blog2023 (6) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... to depot, the Appellant discharged duty on the basis of import parity price as published by Platts, an international organization which notifies the prices of petrochemical products worldwide. The department contested this value and demanded duty on the basis of the ultimate selling price of the goods from the depot. The Appellant stated that there is no provision in the Valuation Rules which permits chasing the selling price of the said goods from the depot and pay duty on the basis of the ultimate selling price from the depot. When there is no other price available at the time of clearance of the goods from the factory to depot on stock transfer basis, the only way available is to determine the assessable value based on the best judgment method. In this case, the Appellant discharged duty on the basis of import parity price as published by Platts, an international organization which notifies the prices of petrochemical products worldwide - when there is no other price available, the adoption of import parity price as published by Platts by the Appellant cannot be faulted. The department has adopted the ultimate selling price of the goods from the depot. It is observed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance of the said goods from their factory. The Ld. Adjudicating Authority has also accepted that valuation was not possible either under Rule 7 or under Rule 9 of the Valuation Rules. Even after rejecting the applicability of Rule 7 and 9 as alleged in the Notice, the adjudicating authority confirmed the demand of differential duty on the basis of ultimate selling price of the said goods from the depot, which is not sustainable. The Ld. Appellate Commissioner has upheld the adjudicating order dated 30.09.2010 without rendering any additional findings. 4. Appellant submitted that in terms of Section 4(1)(b) of the Central Excise Act, 1944, in cases where the goods are not sold, the value of the goods shall be determined in such manner as may be prescribed i.e., in terms of Rule 7 of the Central Excise Valuation Rules. Further, Rule 7 of the Valuation Rules prescribe that duty on the goods cleared to the depot shall be assessed based on the prevailing depot price and in absence thereof, the same shall be determined based on the depot price nearest to the time of removal. There is no provision in the Valuation Rules which permits chasing the ultimate selling price of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date. In the present case, clearances to the depot were effected during February 2002 to March 2002. However, the Notice was issued on 02 April 2004. As such, demand based on the clearance made in the month of February 2002 is hit by limitation. 9. The Appellant also contended that the Show Cause Notice failed to establish any willful suppression or misstatements of facts by them with the intention to evade payment of tax. Hence, invocation of the extended period of limitation is totally unsustainable and penalty is not imposable under section 11AC. 10. The Ld Departmental Representative reiterated the findings of the adjudicating authority in the impugned order. He stated that the import parity price based on Platt cannot be adopted to clear the goods manufactured and cleared from the factory to the depot. 11. Heard both sides and perused the appeal records. 12. We observe that the Appellant has cleared the goods from factory to depot on stock transfer basis. Since there was no prevailing depot price on the date of clearance from factory, they could not adopt the depot price for the purposes of payment of duty as provided under Rule 7 of the valuation Rules, 2000. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any refund. The Commissioner (Appeals) in the impugned order has also given detailed findings to the effect as above. He has also recorded there was no provisional assessment during the relevant period. As such, we have no reason to interfere with the impugned order, which is upheld. Consequently, appeal is dismissed. (ii) In the case of Hindustan Petroleum Corporation Ltd Vs CCE, Visakhapatnam-I, it has been held as under: 6 . We have considered the arguments on both sides and perused the records. It is not in dispute that the assessee is manufacturing goods and clearing them from their factory to the depots. It is also not in dispute that they are subsequently, selling the goods from their depots. Therefore, the time of removal of goods is different from the time of sale of the goods and no sale price is available at the time of removal of the goods. Under such circumstances, in terms of Section 4 read with Rule 7 of Central Excise Valuation Rules, 2000 the price to be applied at the time of clearance of goods, is the price nearest to the time of removal at which such goods have been sold. Evidently, if the duty has to be paid at the time of removal of goods the nearest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority has to justify, he must proceed to determine valuation of goods by following Customs Valuation Rules. The availability of evidence of contemporaneous import of the same goods obviously provides the best guide for determination of value of the import of goods but in the absence of evidence of contemporaneous import, reference to foreign journal for finding out correct international price of imported goods may not be irrelevant because ultimately the Assessing Authority has to determine value of the imported goods, at which such goods are sold or offered for sale in the course of international trade at the time of importation. 15. We observe that when there is no other price available at the time of clearance of the goods from the factory to depot on stock transfer basis, the only way available is to determine the assessable value based on the best judgment method. In this case, the Appellant discharged duty on the basis of import parity price as published by Platts, an international organization which notifies the prices of petrochemical products worldwide. According to the Appellant, the domestic prices in the Petchem Industry are bench marked to the import parity price an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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