Custom, Excise & Service Tax Tribunal
M/S. Wipro Limited vs Commissioner Of Central Excise And ... on 24 April, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No. 20613 / 2014 Application(s) Involved: E/Stay/26403/2013 in E/26086/2013-DB Appeal(s) Involved: E/26086/2013-DB [Arising out of Order-in-Appeal No.80/2013-CE dated 07/03/2013 passed by Commissioner of Central Excise, BANGALORE-I (Appeal).] M/s. Wipro Limited Plot No. 4, Antarasanahalli, Industrial Area TUMKUR DIST - 572 106. KARNATAKA Appellant(s) Versus Commissioner of Central Excise and Customs BANGALORE-II COMMISSIONERATE PB 5400 CR BUIDING, QUEENS ROAD, BANGALORE - 560001 KARNATAKA Respondent(s)
Appearance:
Mr. Cherrian Punnoose, Advocate AKB ASSOCIATES #311-312,'COMMERCE HOUSE' ABOVE HOTEL CHANDRIKA, 9/1, CUNNINGHAM ROAD, BANGALORE - 560 052 KARNATAKA For the Appellant Mr. N. Jagadish, Superintendent (AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 24/04/2014 Date of Decision: 24/04/2014 Order Per : B.S.V.MURTHY The appellant cleared soap noodles to their sister units. During the relevant period, there were also clearances of soap noodles to independent buyers. Taking a view that the payment made by the appellants under Rule 8 of Central Excise Valuation Rules for soap noodles cleared to their own units by adopting the value as per CAS-4 to be wrong and taking a view that price at which soap noodles were sold to independent buyers should have been adopted, demand for differential duty of Rs.3, 67,212/- for the period from October 2009 to January 2010 has been confirmed with interest and penalty under Section 11AC has also been imposed.
2. After hearing both the sides for considerable time, we found that the issue can be decided finally at this stage itself and therefore we waive the requirement of pre-deposit and take up the appeal for final decision.
3. It is the submission of the learned counsel that soap noodles cleared to the independent buyers were entirely different from the soap noodles cleared to their own sister units. The soap noodles cleared to independent buyers were white noodles and specifications were also different and for this purpose he relies on sample invoices along with test reports and evidence of dispatches. He also shows a sample invoice issued to their own sister unit. On going through these invoices we do find that the sales made to independent buyers indicate soap noodles as white nodules as per the lab report and in the case of their own sister concern there is no such indication. Therefore, prima facie, we find force in the arguments that the products are different. However, learned AR submits that this was not at all submitted before the lower authorities and therefore assessee may not be allowed to submit the issue now. The learned counsel counters this by drawing our attention to the affidavit filed by the representative who had appeared before the original adjudicating authority for personal hearing stating that he had shown samples of white noodles and other noodles cleared to independent buyers and their own units respectively to the original authority. He fairly admits that in the written submissions or in the reply to the show-cause notice this aspect was not included. Even though learned AR vehemently argued on this issue, we consider that in view of the fact that appellants have documentary evidence to show the difference and it was submitted by the learned counsel that the documentary evidence existed at the time of clearance of goods, we consider that the products cleared to independent buyers were different from the ones cleared to the appellants own units. Accordingly the matter is remanded to the original adjudicating authority with a request to adjudicate the matter afresh after giving reasonable opportunity to appellants to present their case as well as documentary evidence which they want to submit.
(Operative portion of the order has been pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv 2