Custom, Excise & Service Tax Tribunal
Simbhaoli Sugar Mills Ltd vs Cce, Meerut-Ii on 1 September, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing/Order : 1.9.2014
No. E/Stay/51339/2014 & E/1419/2011-EX(DB)
[Arising out of Order-in-Appeal No. 05/CE/MRT-II/2011 dated 20.1.2011 passed by the Commissioner (Appeals), Customs & Central Excise, Meerut]
For Approval & Signature :
Honble Mr. Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would 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 Department Authorities?
Simbhaoli Sugar Mills Ltd. Appellant
Vs.
CCE, Meerut-II Respondent
Appearance:
Shri Kapil Vaish, C.A. - For the Appellant Shri M.S. Negi, D.R. - for the Respondent Coram : Honble Mr. Justice G. Raghuram, President Honble Mr. R.K. Singh, Member (Technical) F. Order No. 53712/2014 Per R.K. Singh :
The appellants have filed the stay application along with appeal against the Order-in-Appeal No. 05/CE/MRT-II/2011 dated 20.1.2011.
2. The brief facts are mentioned below:
Vide the Order-in-Original No. 67-68/Addl.Comm./M-II/2010 dated 4.10.2010 a demand of Rs.23,24,454/- was confirmed on the ground that the appellants had short paid this amount of duty by adopting the assessable value of molasses at 40 per quintal while as per the order-in-original the assessable value was determined to be Rs.225/- per quintal. The Commissioner (Appeals) modified the said order-in-original to the extent that it determined the assessable value of molasses at Rs.185/- PMT on the basis of the price at which molasses were cleared by M/s The Seksana Biswan Sugar Factory Ltd., Sitapur, during the period 1994-1995 observing that the free sale price of molasses cleared by the said factory varied from Rs.150/- per quintal to Rs.220/- per quintal during 1994-1995 and therefore the price could be fixed at Rs.185/- per quintal on an average basis.
3. The appellants have contended that the Commissioner (Appeals) had fixed the same assessable value (Rs.185/- per quintal) in respect of their earlier case which involved clearances during the period April 1994 to July 1994 based upon the price at which molasses were cleared by M/s The Seksana Biswan Sugar Factory Ltd., Sitapur and that he has mechanically fixed the same price in the present case which involves clearances during the period August 1994 to June 1995 although during this period the average price of molasses cleared by M/s Seksana Biswan Sugar Factory Ltd. was Rs. 95 10 per quintal.
4. We have considered the appellants contention and with the consent of ld. A.R. we proceed to take up the appeal itself waiving the requirement of pre-deposit.
5. We have perused the order-in-Appeal No. 370-CE/MRT-II/2010 dated 30.11.2010 which determined the assessable value of appellants molasses for the period April, 1994 to July 1994 and present (impugned) order-in-appeal determining the assessable value of the appellants molasses for the period August 1994 to June 1995 and find that the relevant paragraph in which the Commissioner (Appeals) discusses the issue and arrives at the decision with regard to the assessable value in both the said orders-in-appeal is identically worded and is re-produced below:
I observe that the appellants have submitted the copy of invoices for the sale of free sale molasses during the financial year 1994-95 in respect of M/s The Seksaria Biswan Sugar Factory Ltd. Sitapur. They have also submitted a chart showing the sale price of free sale molasses by M/s L.H. Sugar Factories Ltd. Pillibhit during the period April 94 to December 95 but no relevant sale invoice has been submitted. On a perusal of the said invoices of M/s The Seksaria Biswan Sugar Factory Ltd., Sitapur-I, I find that sale price of free sale molasses has varied from Rs.150/- per Qtl. to Rs.220/- per Qtl. during 1994-95. Since no other evidence for price at which other assessees sold the comparable goods at or about the relevant time has been produced by the department, the prices produced by the appellants has to be adopted as the basis for valuation. Since there was a price variation during the relevant period, the price could be fixed for valuation at the average price. This price in the instant case comes to Rs.185/- per Qtl.
6. Thus the appellants contention that the Commissioner (Appeals) has not taken into account the appellants contentions and has rather mechanically come to the finding that the assessable value in the present case should be Rs. 185/- per quintal has force. We therefore set aside the impugned order and remand the matter to the Commissioner (Appeals) for de novo adjudication for redetermination of the impugned assessable value after giving the appellants an opportunity of being heard.
(Justice. G. Raghuram) President (R.K. Singh) Member (Technical) RM 1