Custom, Excise & Service Tax Tribunal
M/S. Bharat Roll Industry Pvt. Ltd., ... vs Commissioner Of Central Excise, ... on 25 July, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
STAY PETITION NO.E/S/1164/2011
AND
EXCISE APPEAL NO.E/A/922/2011
(ARISING OUT OF ORDER-IN-ORIGINAL NO.15/COMMISSIONER/CE/KOL-IV/2011 DATED 05.08.2011 PASSED BY COMMISSIONER OF CENTRAL EXCISE, KOLKATA-IV)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
DR. I.P.LAL, 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 ?
M/S. BHARAT ROLL INDUSTRY PVT. LTD., UNIT-II
(FORMERLY B.B.FORGINGS PVT. LTD.)
APPLICANT(S)/APPELLANT (S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE, KOLKATA-IV
...RESPONDENT (S)
APPEARANCE:
SHRI J.P.KHAITAN, ADVOCATE ASSISTED BY SMT.C.ALAM(GUPTA) AND SH.P.BANERJEE,BOTH ADVOCATE FOR THE APPLICANT(S)/APPELLANT(S);
SHRI S.CHAKRABORTY, A.R.( ASSTT. COMMR.) FOR THE REVENUE. CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER Date of Hearing/Decision: 25.07.2013 ORDER NO.S-517/A-219/KOL/13 Per Dr. D. M. Misra This is an Application seeking waiver of predeposit of duty of Rs.67,10,686/- and equal amount of penalty imposed under Section 11AC of the Central Excise Act, 1944.
2. Ld. Advocate, Shri J.P.Khaitan for the Applicant submitted that the Applicant are engaged in the manufacture of excisable goods falling under Chapter Headings 72, 73 and 84 of the Central Excise Tariff Act, 1985. The Applicant are having two more units and cleared cast articles of iron and steel on stock transfer basis. The demand notice was issued for the period from April,2006 to March, 2010 alleging under-valuation of the goods cleared on stock transfer basis. The ld. Advocate submitted that the Department had arrived at the assessable value of the stock transferred goods without proper application of CAS-4 method and no methodology has been disclosed in arriving at the cost of the said stock transferred goods. The method was neither mentioned in the show cause notice nor any basis was communicated to them, in spite of repeated requests being made. The ld. Advocate has submitted that in the show cause notice, the assessable value of the stock transferred goods has been arrived at by simply adding 10% to the value thereof, declared by the Applicant for clearance of the said stock transferred goods.
3. Ld. AR for the Revenue has submitted that in spite of repeated reminders to the Applicant, they failed to submit to the Department the detailed costing data, on the basis of which they had arrived at the value of the stock transferred goods. Consequently, the Department had arrived at the assessable value of the stock transferred goods on the basis of their trial balance, balance sheet etc. and other documents produced by them, as prescribed under Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000.
4. In his rejoinder, the ld. Advocate conceded that the Applicant had not produced any cost sheet before the Department indicating the method by which the value of the stock transferred goods had been arrived at by them. The ld. Advocate, however, made an offer to make a predeposit of Rs.5.00 lakh and also submitted that the case may be remanded to the lower adjudicating authority for re-determination of the assessable value of the goods in question.
5. Ld. AR for the Revenue has no objection for remanding the matter to the ld. Adjudicating Authority, but submitted that the Applicant be directed to deposit some amount.
6. After hearing both sides, we find that the Appeal itself could be disposed of, at this stage. Accordingly, the Appeal is taken up for disposal with the consent of both sides.
7. We find that the issue involved in the present Appeal relates to determination of the assessable value of the stock transferred goods. On going through the show cause notice as well as the impugned Order, we find that the detailed methodology for determination of the assessable value by applying the CAS-4 method had not been mentioned therein. The Revenue blamed the Appellant for non-supply of the cost-sheets and in their turn, the Appellant has also blamed the Revenue that the methodology of arriving at the assessable value mentioned in the demand notice was not supplied to them. On going through the records, we find that in spite of repeated reminders, the Appellant did not submit the detailed cost sheet, on the basis of which, the value of the stock transferred goods had been arrived at by them. At the moment, we are not impressed with the argument advanced on behalf of the Appellant that since it is a revenue-neutrality situation, the principle of valuation need not be adhered to strictly, as laid down in the Rules. We are of the view that the assessable value of the goods in question is required to be determined on the basis of facts/data necessary to calculate the same under Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Value) Rules, 2000. In this scenario, the case needs to be sent back to the Adjudicating Authority for determination of the assessable value of the stock transferred goods, afresh. However, keeping the interest of the revenue in view, we feel it necessary to put the Applicant on terms, while remanding the matter to the ld. Adjudicating Authority. Accordingly, we direct the Applicant to make a predeposit of Rs.5.00 lakh (Rupees five lakh) within a period of eight weeks from today and report compliance directly to the ld Commissioner. After noting the predeposit, the ld. Commissioner will proceed to adjudicate the case afresh. We make it clear that all issues are kept open. The ld. Commissioner should take all evidences into consideration in deciding the issue, afresh. Needless to mention that a reasonable opportunity of hearing may be given to the Appellant. The Appellant is also directed to co-operate with the process of adjudication. In the result, the impugned Order is set aside and the Appeal is thus allowed by way of remand. Stay Petition disposed of.
(Dictated and pronounced in the open court.)
Sd/- Sd/-
(I.P.LAL) (D.M.MISRA) TECHNICAL MEMBER JUDICIAL MEMBER
DUTTA/
2
E/A/922/2011
2