Custom, Excise & Service Tax Tribunal
M/S. Roots Multiclean Ltd vs Cce, Coimbatore on 2 March, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/1111/04
(Arising out of Order in Appeal No. 246/04-CE dated 04.08.04, passed by the Commissioner of Central Excise (Appeals), Coimbatore).
E/893/06
(Arising out of Order in Appeal No. 93/06-CE dated 10.08.06, passed by the Commissioner of Central Excise (Appeals), Coimbatore).
E/984/06
(Arising out of Order in Appeal No. 120/06-CE dated 25.09.06, passed by the Commissioner of Central Excise (Appeals), Coimbatore).
E/985/06
(Arising out of Order in Appeal No. 129/06-CE dated 06.10.06, passed by the Commissioner of Central Excise (Appeals), Coimbatore).
E/146/07
(Arising out of Order in Appeal No. 8/07-CE dated 05.02.07, passed by the Commissioner of Central Excise (Appeals), Coimbatore).
E/311/07
(Arising out of Order in Appeal No. 10/07-CE dated 28.02.07, passed by the Commissioner of Central Excise (Appeals), Coimbatore).
E/429/07
(Arising out of Order in Appeal No. 42/07-CE dated 14.05.07, passed by the Commissioner of Central Excise (Appeals), Coimbatore).
E/352/08
(Arising out of Order in Appeal No. 63/08-CE dated 24.04.08, passed by the Commissioner of Central Excise (Appeals), Coimbatore).
E/233/09, E/234/09, E/235/09,
(Arising out of Order in Appeal No. 13 to 15/09-CE dated 07.01.09, passed by the Commissioner of Central Excise (Appeals), Coimbatore).
E/531/09 & E/532/09
(Arising out of Order in Appeal No. 84 & 85/09-CE dated 04.06.09, passed by the Commissioner of Central Excise (Appeals), Coimbatore).
For approval and signature
Honble Ms. JYOTI BALASUNDARAM, Vice President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
_____________________________________________________________
1. Whether Press Reporters may be allowed to see the : Yes
order for Publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : Yes
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether the Honble Member wishes to see the fair : Seen
copy of the Order.
4. Whether order is to be circulated to the : Yes
Departmental Authorities? ____________________________________________________________
M/s. Roots Multiclean Ltd. : Appellants
Vs.
CCE, Coimbatore : Respondent
Appearance Shri K. Subhash Chandiran, Adv., for the appellants Ms. Indira Sisupal, JDR, for the respondents CORAM Ms. JYOTI BALASUNDARAM, Vice President Dr. CHITTARANJAN SATAPATHY, Technical Member Date of hearing : 02.03.2011 Date of decision : 02.03.2011 ORDER No._____________ Per: Dr. Chittarajan Satapathy, These thirteen appeals were taken up together for hearing and disposal as the issue involved is the same but only the periods are different. Shri K.S. Subhash Chandiran, Ld. Advocate, appearing for the appellants states that they have removed part of the impugned goods for clearance to independent buyers and they have also transferred part of the impugned goods to their own depots for subsequent sales there from. He states that they have initially paid duty on the goods transferred to their depots on the basis of list price for ex-factory sales to independent buyers and have subsequently adjusted the duty amounts depending on whether the impugned goods were sold at a higher or a lower price from the depot on a subsequent day. He also states that they have paid more duty than what is payable by them under the rules and hence, the demand is not justified. He, further states that out of thirteen cases, in respect of three cases, the demands are time barred as the department has issued several show cause notices on the same issue and therefore, extended time limits cannot be applied in respect of these three cases, as has been done.
2. Ms. Indira Sisupal, Ld. DR states that the appellants were required to pay duty in respect of impugned goods transferred to their own depot for subsequent sale in terms of Rule 7 of the Central Excise Valuation Rules, 2000. As per the said Rules, the depot price prevailing as on the date of clearance from the factory is required to be adopted. Hence, the demand raised by the department is justified. She also states that the appellants have not kept the department informed at any stage about non-payment of duty in accordance with the valuation rules and also the subsequent adjustments made by them. She further states that invocation of larger period of limitation is fully justified in some of the cases where it has been invoked on account of the fact that the appellants have not disclosed payment of less duty and adjustment of duty on their own.
3. After hearing both sides, we find that this is a case where there are factory gate sales to independent buyers as well as transfer to the appellants own depots from where the impugned goods have been subsequently sold. We find that the Tribunal has interpreted Rule 7 of the Central Excise Valuation Rules, 2000 to mean that when goods are sold to independent buyers at the time and place of removal even though partially, the provisions of Rule 7 will not be attracted vide Bharat Petroleum Corporation Ltd. Vs. CCE, Chennai - 2010 261 ELT 695. While interpreting thus, the Tribunal has placed reliance on the decision of the Larger Bench in the case of Ispat Industries Ltd. Vs. CCE - 2007 (209) ELT 185. It has been held in these two cases cited above that when there are some sales to independent buyers, the assessable value has to be determined under Rule 4 of the Central Excise Valuation Rules, 2000, based on the value of factory gate sales to independent buyers. Since, the appellants have paid duty on a different basis in these cases, following the ratio of the cited decisions, the matter requires to be remanded to the original authority for fresh decision taking into account the duty amounts that has already been paid and the duty amount that would be required to be paid, applying the valuation method under Rule 4 of the Central Excise Valuation Rules, 2000, based on the assessable value at the factory gate to the independent buyers.
4. As regards the contention of the Ld. Advocate of the appellants that three of the demands are time barred, we find no merit in these submissions. Even though all the demands are on similar issue, the amounts are different relating to different consignments and the invoices and sales details of the same were not furnished by the appellants to the department. Mere filing of RT 12 returns showing consolidated figures for the entire month was not adequate to enable the department to ascertain the state of affairs as the invoices have not been submitted along with the RT 12 returns. Hence, we reject the ground of time bar taken by the appellants in respect of these three appeals.
5. In view of our findings as above, we set aside the impugned orders and remand the matter to the original authority for fresh decision in the above terms. The appellants should be given adequate opportunity of hearing before passing a fresh order.
6. The appeals are allowed by way of remand.
(Operative part of the order pronounced in the open Court on 02.03.11)
(Dr. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE PRESIDENT
BB
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