{"id":212972,"date":"1987-02-24T00:00:00","date_gmt":"1987-02-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/collector-of-central-excise-vs-central-india-board-products-on-24-february-1987"},"modified":"2017-03-28T19:55:43","modified_gmt":"2017-03-28T14:25:43","slug":"collector-of-central-excise-vs-central-india-board-products-on-24-february-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/collector-of-central-excise-vs-central-india-board-products-on-24-february-1987","title":{"rendered":"Collector Of Central Excise vs Central India Board Products on 24 February, 1987"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
Collector Of Central Excise vs Central India Board Products on 24 February, 1987<\/div>\n
Equivalent citations: 1987 (11) ECR 734 Tri Delhi, 1987 (29) ELT 259 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 H.R. Syiem, Member (T)<\/p>\n
1. The appellant, the Collector of Central Excise, Indore, says that the Collector of Central Excise (Appeals), New Delhi, was not correct in his assessment that under notification No. 127\/78-CE., dated 29-5-1978 the value of the unveneered particle board used in the manufacture of veneered board should be calculated up to the stage of sanding and levelling. This notification allows exemption from so much of the excise duty as is equivalent of the duty of excise leviable with reference to that part of the value thereof which represents the value of the unveneered particle board.\n<\/p>\n
2.     The   learned   counsel   for   the   department,   Mr.   Doiphode,   argued that   the   assessees   tried   to   increase   the   value   of   the   unveneered   board only because by this increase there was a larger deduction from the excise duty payable by them. By means of adding the value of sanding and levelling, the value of the unveneered board increased.\n<\/p>\n
3.     The   learned  counsel   said   that   the   factory   clears  only   unsanded, unlevelled   unveneered   board.   The   sanding   and   levelling   is   done   only   for the   purpose   of   veneering   with   plywood   and,   therefore,   this   process   has no   relevance   to   the   value  of   unveneered  board  as  known in  the   market. He   illustrated   this   by   saying   that   if   unveneered   boards   are   purchased from another factory for veneering, the claim for deduction can be only equal to the price paid to that factory for the unveneered boards. He repeated that there was no sale at all of sanded and levelled unveneered boards, and so the value of such boards can have no connection with assessments.\n<\/p>\n
4. He quoted 1980 ELT 704 re: Indian Vegetable Products, and .read paragraph 8 of the judgment. He also read paragraph 2 of 1986 (25) ELT 625 re: Shalimar Textiles.\n<\/p>\n
5.     There   was   no   time   bar,   because   there   had   been   a   clear   mis-statement  on  the  part  of  the  factory by reason of which  they were able to clear  their  veneered boards by taking a higher deduction to which they were not entitled.\n<\/p>\n
6.     The learned counsel for  the  appellant said  that from  the wording of   the   notification,   the   value,   whatever  that   may  be,  of  the  unveneered particle   board   is  to be  excluded.  Their   unveneered  particle  board  is  still unveneered  even  after   it   is  sanded  and  levelled.   It  does  not  matter  for what purpose the sanding and levelling is done. The counsel for the department   says   this  is  done  for  the purpose  of  veneering.  But  that  fact does not  detract  from  the  case,  as by virtue of sanding and levelling, the  unveneered  board  does   not   cease   to  be  unveneered;  it  continues  to  be  unveneered   till   the   stage   it   is   glued  preparatory   to   the   affixation   of   the plywood skin.\n<\/p>\n
7.     He   strongly   commended   the   order   of   the   Collector   of   Central Excise   (Appeals),   New   Delhi,   which   is   the   subject   of   appeal   before   us i.e.   order   No.   205-CE\/APPL\/IND\/85\/770,   dated   8-7-1985   and  the  analysis that  Rule  6(b)(ii)  of the Central  Excise Valuation Rules,  1975,  to be read with   Section   4(1)(b)   of   the   Central   Excises   and   Salt   Act,   1944,   states that  in  such  cases,  the  value  has  to  be  determined  on  the basis of  cost of production  or  manufacture  including  profits,  if   any,   which  an  assessee has   normally   earned  on  the  sale  of   such  goods.  In  the  present  case,  the Collector  said  that we have to find the cost of production or manufacture of   unveneered  particle  boards  and  it   is  an  admitted fact that even after sanding   and   levelling   unveneered   particle   boards   continue   to   remain   as unveneered   particle   boards   and   they   do   not   become   veneered   particle boards. In the circumstances, held the learned Collector, the cost incurred on   sanding   and   levelling   of   the   unveneered   particle   boards   would   enter the  cost  of  production  or   manufacture  of  the unveneered particle boards.\n<\/p>\n
8.     The   learned   counsel   said   that   there   was   no   misstatement   and he   then   read   the  order  of  the  Assistant Collector  which  said  that  there was   a   mistake  in   the  interpretation  of  the  notification.  If  this  is  so,  he said,   there   cannot   be   any   charge   of   misstatement.   He   also   referred   to paragraph  10 and paragraph  11  of their appeal of May, 1985 to the Collector of Appeals. He ended by saying that the judgments cited by the learned SDR were not relevant.\n<\/p>\n
9.     Miscellaneous  petitions   and  cross  objections  were  filed  on  behalf of the factory, but they are not much use, because the additional documents presented   with   the   miscellaneous   application   refer   only   to   the   process of   manufacture   of   veneered   and   unveneered   particle   boards.   The   cross objection contains arguments in favour of their own case.\n<\/p>\n
10.   We   shall   open   our   examination   by   reproducing   notification   No. 127\/78-CE., dated 29th May, 1978. It reads :-\n<\/p>\n
In   exercise   of   the   powers   conferred   by   Sub-rule   (1)   of   rule   8 of   the   Central   Excise   Rules,   1944,   the   Central   Government   hereby exempts particle boards, veneered with plywood panels or veneered with single ply veneer on one or both sides and falling under Item 16-B of the first schedule of the Central Excises and Salt Act, 1944 (1 of 1944) from so much of the duty of excise as is equivalent of the duty of excise leviable with reference to that part of the value thereof which represents the value of unveneered particle boards.\n<\/p>\n
It is the claim of the manufacturers that the value up to and including the cost of sanding and levelling is the value which represents the value of unveneered particle boards. They maintain that it makes no difference if they do not sell such sanded and levelled boards; they admit that they do not, in fact, sell them. To go by the words of the notification alone, it is the value of the board which must be excluded and the value of that board undoubtedly includes the cost of sanding and levelling. It is that board which they use for veneering.\n<\/p>\n
11.   The  unacceptability  of  this  argument  arises from  the  fact that, first of all, the value is of an article which does not figure in any assessment   and   for   whose   value   there   is   no   real   measure.   The  value  of  the sanded   and   levelled   unveneered   board  is  not  susceptible  to determination by   the   forces   of   supply   and   demand,   by   sale,   or   other   similar   market forces.   We  have  seen  that  these  boards  are  not  sold;  Only  the  unsanded, unlevelled,   unveneered   boards   are   sold;   these   have   a   regular   value   and their   value   is   subject   to   the   market   forces   of   supply   and   demand   and are capable of determination in a time-tested manner. The learned counsel for  the  department  was  right  when  he  said  that  the  cost  of  sanding and levelling   is   not   part   of   the   value  of   the   unveneered  board,   but   is   only a  cost  incidental  and preparatory  to  the  veneering  and is necessary only because the board is going to receive the plywood skin\/veneer.\n<\/p>\n
12.   To   argue,   as   the   respondents   do,   is   to   overlook   the   fact   that value  for  the purpose of this  notification  must be defined in accordance with   the   definition   of   value   of   the   Act,   in   the  absence   of   anything   to the  contrary.   Value   under   central  excise,   first   and   foremost,  is  relevant only  when  it  forms  the basis or  reference for a charge of  duty. For  this purpose,   it   is   defined   in Section  4  of  the  Central   Excises  and  Salt  Act; and this is how the first sentence goes :-\n<\/p>\n
Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section, be deemed to be –\n<\/p>\n
(a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time arid place of removal, where the buyer is not a related person and the price Is the sole consideration for the sale; [The rest of the section is not reproduced as it is not necessary for our purpose; but it can be referred to if desired].\n<\/p>\n
13.   Value   is   a  value  at  which  goods  are  sold,  or  are  ordinarily  sold by   the   assessee   in   the   course   of   wholesale   trade.   Value  by  itself  would have no meaning and would have no place and would exercise no function in   our   central   excise   calculations.   An   imaginary   price   or   value   would not   count   and   cannot   figure   in  assessments.   A   value   which  attaches   to an   article   of   sentimental   value,   but   which   does   not   determine   its   sale in   the   market,   would   not   assume   any   office   under   the   law.   The   value must be the normal price; that is to say, it must be a price that the article fetches   in   actual   sale.   The   value  is   not   the   value   one  would  tag  to  an article;   it  would  have  to  be  the price in cold money,  the price at which it is bought and sold, a price which can be determined with reference to its composition, component, cost; a price that can be perceived in relation to known constituents; that price alone can be deemed to be such value.\n<\/p>\n
14. A question can be asked whether this value defined by Section 4 would apply to the calculation of the value which represents the value of the unveneered particle boards. It is not without significance that the wording in the notification bears a close resemblance to the terms of the section. The term “the duty of excise is chargeable on any excisable goods with reference to value” appearing in the first sentence of Section 4 is almost repeated, though in a somewhat modified form, in the term “the duty of excise leviable with reference to that part of the value thereof” in the notification. The duty of excise to be deducted is the duty of excise equivalent to the duty of excise leviable with reference to that part of the value which represents the value of the unveneered particle board. This is the key. To determine what duty is to be reduced or deducted, we must assess the duty with reference to the value of the unveneered particle board. When we do so, our first task will be to ascertain the value with reference to which the duty is chargeable. Since the value must be the price at which goods are sold, the price to be deemed as that value can only be the price at which unveneered boards are sold. Now, the facts are coming into their own; only unsanded, unlevelled, unveneered boards are sold; they have a price in the course of wholesale trade and, therefore, it is only this price which is readily ascertainable so as to be capable of being deemed the value of the unveneered boards.\n<\/p>\n
15.   The   learned  Collector  (Appeals)   was  not   correct  when   he  relied on Rule 6(b)(ii)  of  the Central  Excise Valuation Rules, on the ground that this was  relevant  to  the  purpose  of  the  enquiry.   This  rule  provides –  “If the value cannot be determined under Sub-clause (i), on the cost of production   or   manufacture   including   profits,   if   any,   which   the   assessee  would have earned on the sale of such goods.” Since under Rule 2, value is defined as  a  value  given  under  Section  4   of  the  Act,’ we  can  see from  this why this   sub-rule   cannot   apply   to   the   valuation   of   the   sanded,   levelled,   unveneered   particle  board.   The   application   of   the Central  Excise  Valuation Rules   is   only   for   the  purpose  of  finding  out  as  assessable  value.  Indeed, Section  4  of   the Central  Excises  and  Salt   Act  and  the  rules made under it   have  only   one   goal,   and  that   is,   to   determine   a  price   to  be  deemed as  the  value for assessment.  When there is not going to be an assessment, it is futile to say that the valuation rules will help in determining a value. The unveneered, sanded, levelled boards are not to have a value attached to them for  the purpose of assessment to duty; they would not, therefore, invite the operation of the Central Excise Valuation Rules.\n<\/p>\n
16.   Indeed,   the   object   of   these proceedings  is   not   the   valuation   of the   sanded,   levelled   unveneered   boards.   There   cannot,   therefore,   be   this elaborate   process   under   the   Central   Excise   Valuation   Rules   to   uncover the   cost   of   production   or   manufacture,   the   profits,   if   any,   that   would have been earned on the sale of these goods etc. etc. While such proceedings   might   capitally   fit   the   unsanded,   unlevelled,   unveneered   boards,   if the   need   for   such   valuation   should  arise,   because   these  boards  are  sold. Fortunately,   they  do  not  require,  as  far  as  we  can  tell,   the  help  of  the valuation rules; but that is not a matter of concern for us.\n<\/p>\n
17.   Therefore,   the   sanded,   levelled   boards  do  not  have  a  value  that is   intelligible   in   terms   of   the   Central   Excises   and   Salt   Act;   the  value assigned   to   them   by   their   manufacturers   and   approved   by   the  Collector (Appeals)   is   not   a   value   that   is   ascertainable,   that   can   be   arrived   at, that can be measured and examined by the tests provided by the Act, and, hence, is not a value that can be relied upon for the purposes of the notifiction No. 127\/78-CE.\n<\/p>\n
18.   The   Assistant   Collector,   however,   was   wrong   to   say   that   there had   been   a   misstatement.   He   himself   says   that   there  had  been   a   misunderstanding   in   the  interpretation.  If   there  had  been  a  misunderstanding in   the   interpretation,   there   cannot   have  been   any   misstatement.   An  incorrect   interpretation  of  the  notification  does  not  amount  to a  misstatement.   Furthermore,   the   Assistant   Collector   shows  his  inclination  by  not imposing  any penalty.  A  loss of  nearly a million and  a half  rupees should have   invited   a   fairly   large   sum   of  penalty   on   the  defaulter.  Since   this was  not  imposed, one  must  conclude that there was no    misleading  statement or fraudulent action. Therefore, the demands can operate only within the time bar of six months as prescribed by law.\n<\/p>\n
19.   There   is   little   doubt   that   M\/s.   Central   India   Board   Products have   made   their   claim   only   with   the   object   of   reducing   their   duty   liability.   They  ought  not  to  have  done this and should not have cleared the boards   by   paying   a   duty  which  was  not   correct.   The   Supreme  Court   in 1985 5   ECC   259   re:   McDowell   and   Company,   ruled   that   tax   avoidance was as bad as  tax  evasion and it disapproved a colourable device to avoid tax.   It   was   the   obligation   of   every   citizen   to   pay   his   tax   honestly.  It is no good, according to the judgment, to be able to say that one is keeping within   the   letters   of   the   law   and   simply   avoiding   tax   and  that  such  an action  is  not  equal  to  evasion.  It  is  just as bad,  says the Hon’ble Court, and   one   is   in   respectful   agreement.   M\/s.   Central   India   Board   Products can   realise   quite   well   that   what   they   ask   for   is  an   inclusion  of  a  cost that  they incurred only for the purpose of preparing the unveneered board for   receiving   the   veneer.   It   has   nothing   to   do  with  the  improvement  of the  unveneered board  to  give  it  a better quality or finish so that it will fetch   a   better   market.   The   sanding   and   levelling   is  only   to  enable   the veneer skin to have a uniform and even substrate as this is the best surface for the skin to adhere to, and makes for a good contact.\n<\/p>\n
20.   But   by    making   this   claim,   the   manufacturers   seek   to   reduce their duty payment in a way that is difficult to approve and would certainly not find favour with most right thinking people.\n \n\n21.   The order-in-appeal is set aside and the demands may be enforced, but only for six months.\n\n \n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi Collector Of Central Excise vs Central India Board Products on 24 February, 1987 Equivalent citations: 1987 (11) ECR 734 Tri Delhi, 1987 (29) ELT 259 Tri Del ORDER H.R. Syiem, Member (T) 1. The appellant, the Collector of Central Excise, Indore, says that the Collector of Central Excise […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-212972","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nCollector Of Central Excise vs Central India Board Products on 24 February, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/collector-of-central-excise-vs-central-india-board-products-on-24-february-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Collector Of Central Excise vs Central India Board Products on 24 February, 1987 - 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