Customs, Excise and Gold Tribunal - Mumbai
Kopergaon Ssk Ltd., Mula Ssk Ltd. And ... vs Commissioner Of Central Excise, ... on 8 November, 2001
Equivalent citations: 2003(159)ELT343(TRI-MUMBAI)
JUDGMENT
Gowri Shankar, Member (Technical)
1. The question for consideration in these appeals is the assessable value of the molasses captively consumed by each of these appellants. Kopargaon SSK Ltd., appellant in E/678/96 had taken the assessable value of the molasses consumed by it between August and December 1994 at Rs. 850 per ton. The department has applied the price of Rs. 1300 to Rs. 1965 per ton. In the case of Ashok SSK, the assessee had taken for clearance between February and May 1995 the price of molasses as Rs. 850 per ton. The department has applied the price of Rs. 1000 to Rs. 1300 per ton. In the case of Mula SSK, the assessee had applied for October 1994 the price of Rs. 8.50 per ton. The department has applied the higher price ranging between Rs. 1500 and Rs. 1800 per ton.
2. The basis for the department's action was that this was the price at which the goods were purchased by the Western Maharashtra Development Corporation (WMDC for short), for supply of distilleries run or operated by that government. The contentions of the counsel for Ashok SSK and Kopargaon are as follows. The Committee headed by the Chief Minister of the State had recommended a price for purchase of price much lower than this and that should be applied. Alternatively the price should be determined in accordance with the Rule 6(b)(ii) holding that price at which WMDC purchased these goods were not valid price. He relies upon the decision of the Tribunal in Ashok SSK v. CCE 2000 (117) ELT 708. In the second alternative that WMDC for the reason that it purchased molasses of different grades on three dates. This is the same contention that is taken in the appeal of Mula SSK.
3. We have heard the departmental representative.
4. There is no evidence before us to show that a statutory price for the sale and purchase of molasses was fixed by the appropriate authority during any of the relevant period. Even the recommendation of the Chief Minister's committee has not been produced; assuming that it did recommend a price, that price is not to be recognised as a statutory price. In the absence of a statutory instrument under which it has been made, that recommendation cannot be taken note of for the purpose of determination of value under the Central Excise Act.
5. In its decision in Ashok SSK v. CCE, the Tribunal said that since the WMDC was not the manufacturer of the molasses, the price at which it purchased molasses was not acceptable as value. It then went on to say it was necessary to take at the value the price at which a manufacturer geographically close to the place or located of the factory, whose appeal was under consideration form the basis for value. The departmental representative contends that unless it can be shown that the price of WMDC which has been applied is not the price which it paid to the sugar mill, and hence is not the price at which the manufacturer of the molasses sold them, the fact that it was not a producer would not be relevant. We have to agree. The Tribunal appears to have been guided in the rejection of the WMDC price by the factor of geographical proximity it refers to. That criteria is satisfied before us. All three appellants were from the same district. Ahmednagar where WMDC, we are told, is located.
6. The next contention that WMDC price have been quoted for different grades fails for want of substantiation. Not the slightest evidence has been shown that the grades of molasses that they showed were lower than the grade.
7. Counsel for the appellant relies upon the decision of the Tribunal in Shrigonda SSK v. CCE 2000 (122) ELT 763. In that decision the Tribunal, on the evidence before us, had applied the price of Rs. 1100 per ton between January 1995. We are not concerned with these in any of the appeals before us. We note that the price would not be same for January, February and March. We dismiss this claim for want of substantiation.
8. Appeals are dismissed.