ORDER
J.H. Joglekar,Member(T)
1. On hearing Shri J.C.Patel, advocate for the applicants and Smt.Reena Arya for the Revenue, it appears that these appeals could be taken up for final disposal.This was done by granting waiver of pre-deposit of the duty confirmed and the penalties imposed.
2. Since the issues involved are the same, both appeals are being disposed of vide this common order.
3.M/s.MDS Switchgear has two units, one at Jalgaon and other at Sinnar.The unit at Sinnar manufactured certain goods and cleared them on payment of duty to their unit at Jalgaon.In Jalgaon these goods were fully finished and cleared on payment duty after availing of the input stage duty paid by the Sinnar unit.The valuation of the goods cleared by the Sinnar unit was done on the cost plus profit basis.In computing the cost, the modvat element on the inputs going therein was also taken into account.Such addition was then required by the Revenue authorities.In 1996 the Tribunal in their judgment in the case of Dai Ichi Karkaria 1996 (81)ELT 676 held that such element did not form the part of assessable value.This judgment was upheld by the Supreme Court vide order dated 11.8.1999(84)ECR 4 SC). In the meanwhile, however, such addition was mandatory.The Sinnar unit also rounded up the cost to the next higher complete rupee.
4. The department studied the assessable value of the unfinished goods and the finished goods and found that where the unfinished goods were value at about Rs.61/-, the finished goods were valued at about Rs.50/- to Rs.52/-. In this situation show cause notice was issued on 4.11.1999. It was alleged that the value of the goods by the Sinnar unit be computed without rounding up an d without addition of the modvat element.It was alleged that when this was done, the duty had been paid in excess.The alleged excess payment was computed at Rs.13.908,701/-. It was allege that it was not duty but deposit of duty and therefore could not be taken as modvat credit.It was alleged that such wrong credit taken had resulted in clearance of the goods without payment of duty by the Jalgaon unit.The aforesaid sum was demanded.The Commissioner his order confirmed the duty and imposed penalties on both the units in the process holding that the Dai Ichi Karkira judgment was not relevant.In confirming the duty he used the following phrase:-
“The modvat credit is admissible of the Central Excise duty paid.Whatever duty paid over and above required to be paid is not the duty paid to the Government but it is deposit.Therefore, apart from above legal position the duty which was paid by over invoicing the modvat to the extent of duty on such enhance value ils not admissible by receiving unit at jalgaon.”
5. The appeals are against this order, filed by the Jalgaon unit and Sinnar unit of the appellants.
6. We have carefully considered the submissions made before us.
7. Reasons given by the appellants for the alleged inflation of the value of the intermediate goods are logical. What was required of the Commissioner was to examine the quantum of the loading of the assessable value by the modvat credit on the earlier inputs.That exercise has nowhere been done.If the department was of the opinion that the value of the final product was depressed, then they could have charged the Jalgaon unit with under-invoicing of their product. That has also not been done.The valuation as given by the Sinnar unit was duty approved by the department and the payment of duty was also duly accepted.We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into “deposit of duty”. There is no legal basis for such presumption.The rules entitled the recipient manufacturer to avail of the benefit of the duty paid by the supplier manufacturer.A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in change of the recipient unit (2000 (38) RLT 179).
8. We find that the entire process from the issue of the show cause notice to the determination of the liability to be not based on the relevant law. The proceedings do not survive.The impugned order is set aside. The appeals are allowed with consequential relief.
(Dictated in Court)