ORDER
S.S. Sekhon, Member (T)
1. Issue in these appeals being common, they are being disposed off by this order, after hearing both sides and considering the material on record.
2. The issue determined by CCE (Appeals) is as to what should be the profit margin to be added in case of valuation to be determined of parts of needle roller bearings, cleared for captive consumption, whether the gross profit of the assessee for the previous years which is 23.18%, 15.87%, 21.89%, 26.87%, 27.76% & 26.16% for the years 1991-1992, 1992-1993, 1993-1994, 1994-1995, 1995-1996 86 1996-1997 or 10% as retain profit on the parts in question as held by the CCE (A) in many decisions. Relying on the CBEC Circular No. 258/92/96-CX dated 30.10.1996, wherein it was clarified that in calculation of value under Rule 6(b)(ii) actual gross profit is to be added and CCE(A)’s decision the actual profit was less than 10%. The profit was loaded to the gross profits for previous years as per the Balance-sheet and upheld the duty demand and penatly.
3. The semi finished goods (as per the words used in the order-in-appeal) were found to be WIP (i.e. Wire Alloy Steel) used for captive consumption by the appellant. On the very same product i.e. wire used captively, based on C.A. certificates in the appellants’ own case, the jurisdictional Commissioner for the period March 1994 to March 1997, fixed a profit margin of 10% and did not add gross margin of profit from Balance-sheet, as seen from vide Order-in-Original No. 04/CEX/99 dated 3.2.1999. CCE (Appeals), vide Order No. 96 (2000 dt. 17.10.2000, in appellants own case, following the earlier orders of CCE (Appeals) Section No. SDR (1980) 642/AUR 2002 dated 29.10.2002 on same wire needlenss and following the Tribunal’s decision in Festo Elgi (Pvt.) Ltd. and nothing that Civil Appeal No. 3179 of 1998 of CCE against this order has been dismissed by the Supreme Court , he did not uphold the loading on gross profit as per Balance sheet and restricted it to 10%. The learned D.R. could not confirm or deny that these orders of Commissioner in appellants case have attained finality inasmuch as no appeal is pending against the same. In light of these facts and the decision of the Larger Bench in the case of Raymond Ltd. no case in found to load any profit in excess of 10% as arrived at. No demands of duty or and penalty could be upheld. The orders are to be set aside and appeals allowed.
4. Ordered accordingly.
(Pronounced in Court).