Custom, Excise & Service Tax Tribunal
M/S India Foils Ltd vs Commr. Of Central Excise, Kol.Iii on 11 October, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
SP-343/10
& Ex. Appeal No.295/10
Arising out of O/A No.16/Kol-III/10 dated 29.01.2010 passed by Commr. of Central Excise, Kol.III.
For approval and signature:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER
DR. D. M. MISRA, HONBLE JUDICIAL 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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s India Foils Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise, Kol.III
RESPONDENT (S)
APPEARANCE Shri Rohit Sharma, C.A. for the Appellant (s) Shri S. Misra, Addl. Commr. (A.R.) for the Department CORAM:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & DECISION : 11. 10. 2012 ORDER NO.. Per Shri S. K. Gaule :
The applicant filed this application for waiver of predeposit of duty of Rs.13,03,627/- and equal amount of penalty under Section 11AC of the Central Excise Act, 1944. The contention of the applicants is that they are engaged in the manufacture of printing ink, solution, thinner and adhesive at Kamarhati unit and other units are at Taratala and at Hoera. They cleared their intermediate products through Kamarhati unit to Taratola Unit and Hoera. On the clearance of the intermediate product to the sister unit, they arrived at a value based on the basis of cost construction method. The department raised demand against them for differential duty of Rs.13,03,627/-. on the ground that the value is not computed as 100 % + 15% and instead is computed as 100% + 3%.
2. The contention of the applicant is that they have arrived at the value by including of 15% of the profit on the basis of cost of the production overhead. In reply to the show cause notice, they submitted a letter to the Department showing that their value includes cost of production + 15% before show-cause notice. However, the Department raised show-cause notice not accepting their letter and confirmed demand on the basis of their cost of production of goods 100% + 15% and not 100%. We find that the whole case is on the basis of that the applicant could not produce CAS-4 Certificate. The applicant has now produced the CAS-4 Certificate for the relevant time.
3. The ld. A. R. for the Department submitted that they have filed price declaration under Rule 173C showing the margin of 3%.
4. In his rejoinder, the ld.C.A. appearing for the applicant submitted that the said margin was not 3%, it was 15% due to change of formulation of cost price of intermediate product has come down. The contention is that whatever duty they are paying, will be available as cenvat credit to their sister unit and the whole exercise would be revenue neutrality. The ld.C.A. also submitted that their unit was under BIFR in the year 2011.
5. Taking into account the overall aspects and circumstances of the case and after hearing both sides, we find that the appeal itself can be disposed off at this stage. Therefore, after waving requirement of predeposit, we take up the matter for disposal. Undisputedly, the CAS-4 Certificate now produced by the appellant was not before any of the lower authorities. In these circusmstances, after setting aside the order of the ld. Commissioner (Appeals), the matter is remanded to the lower adjudicating authority to decide the matter afresh after taking into consideration of CAS-4 Certificate submitted by the appellant. Needless to say, a reasonable opportunity of hearing may be granted to the appellant. All issues are kept open. The appeal is allowed by way of remand. Stay petition is disposed off.
Dictated and pronounced in the open Court.
Sd/ Sd/
( DR. D. M. MISRA ) ( S.K.GAULE )
JUDICIAL MEMBER TECHNICAL MEMBER
mm
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Ex.Appeal No.295/10