Customs, Excise and Gold Tribunal - Mumbai
Ashok Ssk Ltd. vs Commissioner Of C. Ex. And Customs (A) on 9 April, 1999
Equivalent citations: 1999ECR214(TRI.-MUMBAI), 2000(117)ELT708(TRI-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. Ashok Sahakari Sakhar Karkhana Ltd. E/1634-V/95-BOM, E/635-V/95-BOM as well as E/636-V/95-BOM and along with Shri Dnyaneshwar S.S.K. Ltd. E/832-V/95-BOM.
2. These four appeals were argued by Shri K.P. Joshi, Advocate for the appellants. Shri G.B. Yadav represented Revenue. Since the issue involved is the same, these four appeals are being taken up together for disposal in this single order.
3. Both appellants manufactured molasses and consumed for captive consumption at Rs. 850/- PMT. The Jurisdictional Assistant Collector took into account the price at which molasses was being purchased by M/s. Western Maharashtra Development Corporation (WMDC), Chitali. He found that the purchases were between range of Rs. 1000/- PMT to Rs. 1850/- PMT during this period. Taking these as comparable prices, the Assistant Collector in three Judgments re-determined the assessable value and confirmed the differential duty.
4. In the case of Shri Dnyaneshwar S.S.K. Ltd. the value for captive consumption adopted was Rs. 1500/- PMT. The Assistant Commissioner rede-termined the price at Rs. 1950/- PMT on the basis of the purchase prices fixed by WMDC. He confirmed the differential duty.
5. Both manufactures then filed appeals before the Commissioner (Appeals) Pune. Before the Commissioner it was claimed that a price of Rs. 850/- PMT was fixed by the Maharashtra Government. It was however; admitted that this price was not notified under any Government Resolution. On this observation the Commissioner held that this price could not be acceptable under Section 4(1)(a)(ii) of the Central Excise Act, 1944. The Commissioner cited the provisions of Rule 6(b) of the Central Excise (Valuation) Rules. He held that the WMDC had purchased molasses at the rate of Rs. 1950/- PMT from the factory in Solapur being a near place, in terms of the Madhya Pradesh High Court Judgment in the case of Gwalior Rayon Mfg. Co. v. Union of India, 1982 (10) E.L.T. 844, that price was taken for comparison.
6. In the case of Ashok S.S.K. Ltd. the plea made by the appellant that in all the three orders passed by the Assistant Collector the assessees were not called for hearing. The Commissioner held that in the first order due opportunities had been given and two other orders followed, the logic in the first order. On this observation he upheld all the lower orders.
7. We find that both the appellants captively consumed molasses manufactured by them. Since no quantity was sold by them, the valuation of comparable goods manufactured by other assessees would become the basis for determination of the assessable value of the goods so captively consumed. However in terms of Rule 6(b)(i) such value has to be of comparable goods produced or manufactured by other assessees. In the case of all appeals before us the standard for comparison was the prices at which M/s. WMDC had purchased the molasses. Admittedly WMDC were not manufacture of molasses, but were consumers. For comparison it was necessary for the Assistant Commissioner to take the value at which such goods as sold by a manufacturer of molasses who was geographically close to the present appellant. If this is not done then the application of Rule 6(b)(i) has to be taken as wrongly made. The ld. Commissioner overlooked this requirement and therefore wrongly upheld the lower orders.
8. We set aside all the impugned order and remit the proceedings back to the Jurisdictional Assistant Commissioner. He will cause enquiry as to the values commanded by nearby assessees for molasses of the same grades, comparable to what was consumed by the two appellants in the present case and then issue appropriate orders. The appellants undertake to supply the required information and to assist the Assistant Commissioner in this exercise. These four appeals are thus allowed by way of remand.