ORDER
K.K. Usha, J. (President)
1. The challenge in this appeal at the instance of the assessee is against the order passed by the Commissioner (Appeals) dated 30-5-2000.
2. The appellants are manufacturer of Printed and Laminated Sheets and Pouches falling under Heading 39.20 of Central Excise Tariff Act, 1985. They removed certain inputs from their unit to sister unit situated at A-46, Sector-58, Noida after reversing the amount of credit availed by them on those inputs. Proper invoice as per provisions of Rule 52A of Central Excise Rules were also issued. RT-12 returns were being filed enclosing therewith other related documents. While so, show cause notice dated 7-3-2002 was issued to the appellant alleging that the appellant have contravened the provisions of Rules 9(1), 173C, 173F, 173G of the Central Excise Rules and Section 4 of Central Excise Act read with Rules 7 & 9 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 and evaded Central Excise duty amounting to Rs. 1,69,453/-. The demand was made on the allegation that the appellants have removed various inputs to their sister unit after debiting the Cenvat Credit availed on those inputs without extending the value to 115% of the landed cost of inputs or cost of production/manufacture of such goods in terms of Section 4 of the Central Excise Act read with Rules 8 and 9 of the Central Excise Valuation Rules. It was further alleged that the appellant have suppressed the facts at the time of submitting their marketing pattern as provided under Rule 173C(3A) of Central Excise Rules and they disposed of their goods through their depot/branch office/through units of the same group i.e. their sister concern.
3. The appellant submitted detailed reply on merits and also contended that the demand is barred by limitation. The adjudicating authority confirmed the demand. Aggrieved by the order of adjudication the appellant filed an appeal which was also rejected by the Commissioner (Appeals).
4. The learned Counsel for the appellant submitted that the appellant have followed the direction given in Circular No. 643/34/2002-C.E., dated 1-7-2002 issued by the Board. Under these circumstances, the authorities below should not have found fault with the procedure followed by the appellant. The relevant portion of the Circular is quoted below :-
CLARIFICATIONS ON POINTS OF DOUBT UNDER THE NEW VALUATION
PROVISIONS INTRODUCED W.E.F. 1-7-2000.
14. Mow will valuation be done when inputs or capital goods, on
which Cenvat credit has been taken, are removed as such from the factory,
under the erstwhile sub-rule (1C) of Rule 57AB of the Central Excise Rules,
1944, or under Rule 3(4) of the Cenvat Credit Rules, 2001 or 2002?
Where inputs or capital goods/ on which credit has been taken,
are removed as such on sale, there should be no problem in Ascertaining the
transaction value by application of Section 4(l)(a) of the Valuation Rules,
[provided tariff values have not been fixed for the inputs or they are not
assessed under Section 4A on the basis of MRP].
There may be cases where the
inputs or capital goods are removed as such to a sister unit of the same
company and where no sale is involved. It may be noticed that sub-rule (1C)
of Rule 57AI3 of the erstwhile Central Excise Rules, 1944 and Rule 3(4) of
the Cenvat Credit Rules, 2001 (now 2002), talk of determination of value for
“such goods”
and not the “said goods”. Thus, if the assessee partly
sells the inputs lo independent buyers and partly transfers to its sister
units, the transaction value of “such goods” would be available in
the form of the transaction value of inputs sold to an unrelated buyer (if
the sale price to the unrelated buyer varievS over a period of time, the
value nearest to the time of removal should be adopted).
Problems will, however, arise where the assesses does not sell
the inputs /capital goods to any independent buyer and the only removal of
such input/capital goods, outside the factory, is in the nature of transfer
to a sister unit. In such a case proviso to Rule 9 will apply and provisions
of Rule 8 of the valuation rules would have to be invoked. However, this
would require determination of the ‘cost of production or
manufacture’, which would not be possible since the said
inputs/capital goods have been received by the assessee from outside and have
not been produced or manufactured in his factory. Recourse will, therefore,
have to be taken to the residuary Rule 11 of the Valuation Rules and the value
determined using reasonable means consistent with the principles and general
provisions of the Valuation Rules and sub-section (1) of Sec. 4 of the Act. In
that case it would be reasonable to adopt the value shown in the invoice on the
basis of which Cenvat credit was taken by the assessee in the first place. In
respect of capital goods adequate depreciation may be given as per the rates
fixed in Setter F. No. 495/16/93-Cus.VI, dated 26-5-1993, issued on the Customs
side”.
5. We heard the learned SDR who submitted that the orders impugned are not liable to be interfered with.
6. On going through the relevant portion of the Circular mentioned above, we find the appellant had followed the procedure referred therein. The Commissioner (Appeals) has also referred to the abovementioned circular but without assigning any reason he has rejected the contention taken by the appellant. Once the appellant has followed the circular issued by the Board and his action is not against any statutory provision, we find no reason to deny the benefit to the assessee. In the present case the assessee has adopted the value on the basis of which Cenvat Credit was taken. If that be so, demand in the show cause notice cannot be sustained. The order impugned is therefore set aside and appeal stands allowed.
