Customs, Excise and Gold Tribunal - Mumbai
M/S. Usv Limited vs Commissioner Of Central Excise, ... on 27 July, 2001
ORDER Jyoti Balasundaram, Member (J)
1. The issue for determination in this case is as to what is the price to be adopted good captively consumed when sales of identical goods by the same assessee also take place. It is the contention of the appellant against the duty demand confirmed on the ground that the sale price to outside customer is to be adopted for captive consumption also, that under Central Excise (Valuation) Rules viz. Rule 6, certain adjustments are permissible. In their case, they submit that adjustments are required to be given because the price is inclusive of payment of commission of Rs. 3142.95 and, therefore, they submit that the price adopted of Rs. 49,000/- per kg which is the price at which they sold the goods during the period March 1992 to Torrent Pharmaceutical is not correct. Regarding the plea that the demand is barred by limitation, it is their submission that even though price lists for Torrent Phramaceuticals at Rs. 49,000/- per kg. of bulk drugs manufactured by them had been filed, they continued to clear the goods for captive consumption at Rs. 45,425.50 per kg and, therefore, the department had knowledge that they were adopting different price for captive consumption than the price at which they sold the goods to outside customers.
2. The id. Departmental Representative Shri Jain says that the question of application of Central Excise Valuation Rules does not arise as the rules will apply only to goods covered under Sec.4(1)(b) of the Central Excise Act. Since the present case is covered under Sec.4(1)(a) where there is a normal price, It is that price at which the goods are sold to outside customers which is to be adopted for the purpose of captive consumption also. Countering the argument on time bar, he reiterates the findings of the Adjudicating Authority that the assessee never disclosed that Part.I price list was filed in respect of goods captively consumed in their own Mumbai Unit and this has been done with intention to evade payment of duty by suppression of material particulars.
3. We have carefully considered the submissions of both sides. Regarding the plea of applicability of Central Excise (Valuation) Rules, the decision of the Tribunal in the case of H.M.T. Ltd. vs CCE [1989 (41) ELT 602(Tri) operates directly against the appellants. The Tribunal has held that where a normal price in terms of Sec.4(1)(a) is available, a separate price for goods captively consumed based on Rule 6 of the Valuation Rules cannot be adopted for the purpose of assessment of such goods. There are other orders of the Tribunal holding the same view. Following the ratio of H.M.T. decision supra, we hold that the department is correct in adopting the price at which the bulk drug was sold to outside customers as the price for captively consumed goods. however, we agree with the appellant that the demand is barred by limitation. We note that price lists submitted for March, 1992 when goods were sold to Torrent Phramaceuticals at the rate of Rs. 49,000/- per kg were filed showing price for captive consumption as Rs. 45,425/-. Copies of the invoices were also submitted with RT. 12 returns which have been assessed. Therefore, the Id. counsel is correct in his submission that through out the period on dispute, the department had knowledge that the duty was being paid on goods captively consumed at lower rate than on goods sold to outside customers. Therefore, we hold that the demand is barred by limitation. This appeal is allowed on limitation after setting aside the impugned order.
(Dictated in Court)