Custom, Excise & Service Tax Tribunal
) M/S. Ramsarup Utpadak, Unit-Ii vs Commissioner Of Central Excise, ... on 15 September, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
Stay Petition NO. SP-71108/2013
&
Appeal NO. E/71046/2013
(ARISING OUT OF ORDER-IN-ORIGINAL NO. 32/Commr/CE/KOL-III/2012-13 DATED 28.03.2013 PASSED BY COMMISSIONER OF CENTRAL EXCISE, KOLKATA-III)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities ?
1) M/S. Ramsarup Utpadak, Unit-II
APPLICANT(S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE, KOLKATA-III
...RESPONDENT (S)
APPEARANCE:
SHRI N.K. CHOWDHURY, ADVOCATE FOR THE APPELLANTS SHRI A.ROY, SUPDT.(AR) FOR THE REVENUE. CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER SHRI H.K.THAKUR, HONBLE TECHNICAL MEMBER Date of Hearing: 15.09.2015 Date of Decision: 15.09.2015 ORDER NO.- FO/A/75530/2015 Per Shri H.K.Thakur These stay application and appeal have been filed by the appellant against OIA No. 32/COMM/KOL-111/2012-2013 Dt 28.03.2013 passed by commissioner of Kolkata- III Commissionerate under which a demand of Rs. 1, 23,55,704/-along with interest has been confirmed and an equivalent amount of penalty has also been imposed upon the appellant.
2. Sr. N.K. Choudhary (Advocate) appearing on behalf of the appellant argued that the issue involved in these proceedings is regarding valuation of goods supplied to their sister concern. That Commissioner has held that valuation of good was required to be done as per Rule 8/9 of the Central Excise valuation Rules 2000- at 110% of the cost of manufacture as per CAS-4. Learned Advocate made the bench go through Para-2 of the discussion and findings of the O-I-O Dt. 28.03.13 to drive home the point that appellant is selling the goods manufactured to independent parties and also supply the same goods to their sister concerns. That once selling prices of goods to independent parties are available then there is no point in calculating CAS-4 value under Rule. 8/9 of the Valuation Rules Learned. Advocate also argued that the demand is hopelessly time barred as there can not be any suppression of facts when the duty paid by the appellant is also admissible as cenvat credit to the sister concerns where goods are captively used.
3. Sh. A. Roy (AR) appearing on behalf of the revenue argued that there is no evidence on record that appellant is also selling similar goods to independent parties at the factory gate and strongly defended the order passed by the Adjudicating authority.
4. Heard both sides and perused the case records. The issue involved in this appeal is whether appellant was required to discharge duty liability at a value of 110 %. of the cost of manufacture with respect to goods supplied to appellants sister concern. As the issue involved in this appeal lies in a narrow compass, therefore, after allowing the stay application the appeal itself is taken up for disposal. It is the case of the appellant that the same goods are also sold to independent buyers at the factory gate, therefore, the same value is required to be adopted for payment of duty when goods are cleared to their sister concerns who are also entitled to credit Learned AR strongly argued that there is no evidence on record that same or similar goods are sold to independent parties at the factory gate. However we observe that in Para 2 of the discussion and findings portion of the OIO Dt. 28.03.2013. It has been categorically observed by the Adjudicating authority that the good manufactured by the appellant are also sold to independent parties and also transferred to their other sister concerns. When the same/similar good are also sold to independent parties at the factory gate then it is not understood as to how adjudicating authority has come to the conclusion that Sec. 4(1)(b) of the central Excise Act 1944 will be applicable The matter is, therefore, remanded to the Adjudicating authority to give specific findings on the issue as to why factory gate prices if available for the manufactured goods, can not be taken for discharging duty on the same good when supplied to appellants sister units/ related persons. We make it clear that this bench has not made any observations on the merit of the case. All issues, including the time bar issue raised by the appellant, have been kept open for the Adjudicating authority to deliberate upon after giving appellant an opportunity of personal hearing. Appeal filed by the appellant is allowed by way of remand to the adjudicating authority. Stay application filed by the appellant is also disposed off.
(Operative part of the order was pronounced in the court.)
(D.M.MISRA) (H.K. THAKUR)
JUDICIAL MEMBER TECHNICAL MEMBER
Tushar kumar