9911796707
TMI Blog2000 (9) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... have also another manufacturing unit called Unit II at Chinchwad, Pune. It is stated by the assessees that the said unprinted bottles were cleared on payment of duty by the appellants at their Pimpri Unit, thereafter, is transferred to their own unit (referred to above) which is a few kilometers away for printing the logos of different soft drinks/soft drink manufacturers such as Coke, Pepsi, Mangola etc. It is stated by the appellants that the issue as to whether the similar unprinted bottles are sold by the appellants to various purchasers at the factory gate should be considered for purpose of levy of excise duty or not ? They have filed Part-I price list for such manufacturer and sale of the goods at Pimpri Unit. It would appear that on 30-7-1994 they filed a price list No. 1/94-95 in part-I for sale of the said unprinted bottles sold in the wholesale trade. The prices of those bottles were approved (provisionally) at Rs. 2190/- for 215 ML. variety and at Rs. 2260/- for 300 ML variety. It is stated by the appellants that the percentage of sale in the wholesale trade would be about 32%. Percentage of captively consumed bottles would be 68% of the above price lists which were pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir goods unit at Rishikesh (U.P.) and at Pondicherry. For the sake of repetition it is stated that this point has been negatived by the Assistant Commissioner in his order dated 30-4-1997 which is mentioned in the earlier portion of the order. 3.Be that as it may, the appellant further states that price list was filed on 10-12-1996 declaring the value of bottles for captive consumption at Rs. 2,460/- for bottles 250 ML and at Rs. 2,530/- for bottles of 300 ML taking notional profit of margin shown at 14%. Against this price lists Assistant Commissioner caused a cost audit in terms of provisions of Section 14A of the Central Excise Act, 1944, the price lists was not approved the order was dated 5-3-1998. Against this order an appeal was filed by the assessee before the Commissioner (Appeals) and it is still pending. In the meantime a show cause notice was issued by the Assistant Commissioner on 17-4-1998 demand on payment of Rs. 54,18,202.90 for the period from January 1997 to October 1997 on the basis of the report of the cost accountant. On 26-6-1998 show cause notice was issued by the adjudicating authority before us namely the Commissioner of Central Excise Pune, demanding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... told both sides that on 5-7-2000 the cases will be taken up for final disposal irrespective of either sides being ready and irrespective of presence of Sr. Counsel or not. The order was dictated in open Court. The matter has also been adjourned several times previously. We were concerned with the matter because the Revenue involved nearly Rs. 2 crores, therefore, we ordered earlier disposal of the appeal, we therefore, disinclined to agree with request of the Commissioner for adjournment. Shri K.M. Patwari said that the department is not being represent by the departmental representative. Under these circumstances last time Shri Arun Bakre, Jr. Counsel was named by Shri Sethana, Sr. Counsel as junior Counsel. We do not find any Vakalatnama filed by Shri Bakre, hence we have to make the department ex parte under the very peculiar circumstances. 6.Shri A. Hidayatullah opening the arguments stated that the case is of very peculiar nature. Here is a case where the price lists have been filed, which have been approved provisionally, thereafter, trying to revising the such provisional assessment and such a proposal for revision was dropped by the Jurisdictional Assistant Commissioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les is not warranted in this case. He took us through the provisions of Section 4(1)(a) of the Act, as well as (b) of the Act. He also read the Valuation Rules 3 to 7 of the Valuation Rules. He states that in terms of the provisions of Rule 4 which states inter alia value of the excisable goods shall be based on the value of such goods sold by the assessee for delivery at any other time nearest to the time of removal of goods under assessment. He states that the mandatory word "shall" contained in Rule 4 clinches the issue in his favour of the client. Here it is the case known that the goods have been sold at 32% to 38%. The fact that the department sought to revise the price lists on a different ground was dropped by the Jurisdictional Assistant Commissioner himself. No appeal having been filed he states that the provisions of Rule 4 is clearly applicable to the facts of this case. The invocation of Rule 7 of the Central Excise Rules cannot be made applicable to the case, because the said rule stress inter alia that in the value of the excisable goods cannot be determined under forgoing rules viz. only on failure to determine in terms of that Rule 4 read sequentially thereafter to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... values as contemplated under Section 4 of the Central Excise Act, 1944. On 30-4-1997 the Assistant Commissioner dropped respective demands issued from 1994 to 1997 consequent upon revision were also dropped on 23-6-1999. It is rightly contended by Shri Hidayatullah that no proceedings were initiated against the orders passed on 23-6-1999 and 30-2-1997; when such is the position we fail to see how the department initiated action under Section 14A of the Central Excise, that is not matter before us. In the sense, the Department has not challenged that portion of the order which has dropped the proceedings initiated under the powers enshrined in Section 14A of the Central Excise Act, 1944. 9.We find that, as far as the valuations is concerned, it is not as if the department did not have the Price lists of similar goods. It was emphasised that the three Price lists clearly referred to above, indicated the price. The percentage of sales being 32% and 38%, when available for similar types of goods, then we find that the Judgment of the Tribunal decision in the case of Mohan Crystal Glass Works [2000 (118) E.L.T. 691 (Tribunal) = 2000 (37) RLT 345], with which agree, would be applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for captively consumed goods, determined on basis of comparable goods price as per the Price List sale invoice and evidence of removal on such invoices. We are therefore of the view that the Valuation Rules as applied by the Commissioner cannot be invoked on a true construction of Rule 7 of Valuation Rules, in light of the facts in this case and the language of the said rule. 10.For the period January 1997 to October 1997 there is an overlap in the demands being raised by the Commissioner and the show cause notice issued by the Assistant Commissioner. Examining, this issue, we find the Commissioner in para 17 of the impugned order has found as under : "However in view of the fact that an overlapping has occurred and for the same period, two different authorities have issued two in a hierarchy have issued show cause notices, legal propriety demands only one can survive. As per the Departmental convention when two different authorities in a hierarchy have issued the show cause notice, the show cause notice issued by the senior functionary alone would survive and the orders issued by the Commissioner would prevail. The Assistant Commissioner has himself restrained from passing an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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