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TMI Blog2023 (6) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... ENVAT Credit of the same. Therefore, it is the revenue neutral situation. The demand of duty is not sustainable against the Appellant. Accordingly, the impugned order is set aside and the appeals are allowed. - Excise Appeal No.125 of 2012 Excise Appeal No.70855 of 2013 Excise Appeal No.70856 of 2013 - FINAL ORDER NO. 75681-75683/2023 - Dated:- 13-6-2023 - HON BLE SHRI ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE SHRI K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri Rajesh Mittal , Authorized Representative for the Appellant ( s ) Shri S.Mukhopadhyay , Authorized Representative for the Revenue ORDER Per : ASHOK JINDAL : The Appellants are in Appeal. As in all the Appeals, the issue is identical and therefore all are disposed of by a common order. 2. The facts of the case are that the Appellants are engaged in the manufacture of semi-finished excavator parts and cleared the same on payment of duty to their sister concern for further manufacture on their behalf. The period involved in all the Appeals is 2005-06 to 2009-10 and dispute relating to the determination of assessable value of stock transferred parts to their sister concern by the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months of December 2009 to March 2010 for ingots and February 2010 to March 2010 for coils. Accordingly, the differential duty of Rs 62,63,509/- has been demanded vide show cause notice dated 05/09/2011and the demand has been confirmed by the Adjudicating authority vide the impugned order dated 28/06/2012. 14. The Appellant stated that on many months they have paid duty in excess of the duty payable as per CAS-4 Certificate issued at the end of the year. Only for few months there was a short payment of duty. If the excess paid duty is adjusted with the short payment then overall there was an excess payment of duty and hence there is no demand liable to be confirmed. The Appellant stated that they have brought the excess payment to the notice of the Adjudicating authority. However, the Adjudicating authority refused to adjust the excess payment against the short payment. They have cited various decisions in support of their case that the short payment of duty can be adjusted against excess paid duty, some of which are as follows:- a. Pr.Commr. of CGST C.EX. Headquarters Bhopal v. Godrej Consumer Products Ltd. [2019 (367) ELT 985 (MP) wherein it has been held as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we consider the appellant s plea regarding the transaction value arrived at based on costing should be at the time of removal. It was submitted that the scheme of things for excise duty purposes in terms of Section 4 and Rules made thereunder and Central Excise Rules, the duty liability based on self-assessment has to be discharged at the time of removal of goods when the invoices are prepared. The legal position as submitted by the appellant cannot be contested. However, it is an admitted fact that the appellants themselves did not follow costing to arrive at deemed transaction value for each clearance. They have considered a period of many months and worked out the costing, in terms of CAS-4 for that period and paid duty. Thereafter, they revised said costing when there are changes in raw material cost. That being the case, we find that the reliance placed by the appellant on the principle that time of removal is relevant and, hence, annual costing is not tenable, is unsustainable. The fact remains that while the duty liability has to be discharged at the time of removal of excisable goods in a situation where there is no sale transaction and known value, the deemed transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany. To that extent we find the CAS-4 cost price arrived at on annual basis by the Revenue is correct procedure. 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 Original Authority against adjustment of already paid duty as untenable. Section 11B has no application in such situation, when the appellants duty liability is determined on annual CAS-4, the duty already paid during said period has to be adjusted. The q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the demand confirmed in the impugned order is not sustainable. 15. The Appellant has argued that the entire exercise is revenue neutral as the duty paid by them will be available as credit for their sister unit. We agree with this view of the Appellant. The duty paid by the Appellant would be available as credit to their sister unit. This the entire exercise is revenue neutral. In support of their argument the Appellant cited the following decisions:- a. Commissioner of C.Ex., Pune v. Coca-Cola India Pvt.Ltd. [2007 (213) ELT 490 (S.C.)] Classification of goods - Revenue neutrality - Classification of non-alcoholic beverage bases/concentrates manufactured by assessee which are supplied to bottlers, who in turn use the same as raw material in manufacture of beverages - Excise duty payable on beverage bases/concentrates and Modvat credit availed under Notification No. 5/94-C.E. (N.T.) is identical hence, consequences of payment of excise duty after availing Modvat credit was revenue neutral - In view of such stand being taken by assessee, appeals dismissed leaving question of law open. [paras 6, 7] b. Commr. of C.Ex. Cus., Vadodara-II v. Indeos ABS Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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