TMI Blog2012 (3) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court judgment in Ujagar Paints (supra). However, if the Department doubts the assessable value of the job- work goods, the same can be got verified by appointing a Cost Accountant under Section 14A. As regards clearance to other group company alleged to be the related persons, for their captive consumption are concerned, there is no dispute that in respect of these clearances, the assessable value would be 115%/110% of the cost of production in terms of the provisions of Rule 8 of Valuation Rules, 2000 - However, the appellant’s plea, as mentioned in the grounds of appeal, is that they have not provided any C&F Agent service and in fact, they have received the service of C&F agent from some persons and the amount on which the Service Tax is sought to be charged is the amount paid by them to their C&F Agent. The Commissioner must examine this plea and ascertain the factual position. If the appellant are recipient of the C&F Agent services, the Service Tax cannot be charged from them as it is the service providers, who would be liable to pay Service Tax - Matter remanded back - Decided in favour of assessee. - E/2322-2324/2009 - Final Order Nos. A/384-386/2012-EX(BR)(PB) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment has alleged that during the period of dispute, there was short payment of duty to the tune of Rs. 2,83,73,169/-. 1.3 During the period of dispute, the Appellant Company had recovered total amount of Rs. 18,99,000/- on account of Art Designing charges from their customers which had not been included in the assessable value. The duty on this amount is Rs. 2,24,934/-. 1.4 Besides this, it is also alleged by the department that during the period 2001-2002 to 2003-2004, the appellant company had provided the services of C F agent to their clients on which neither any Service Tax has been paid nor did they obtain Service Tax registration or filed ST-3 returns. The Service Tax alleged to have been evaded is Rs. 3,28,747/-. 1.5 It is on the above basis that a show cause notice dated 29-3-2006 was issued to the appellant company as well as to Shri Harish Ahuja and Mrs. Sarla Ahuja, for - (a) Recovery of allegedly short paid duty amounting to Rs. 6,87,17,865/- (Rs. 4,01,19,762/- + 2,83,73,169 + Rs. 2,24,934/-) from the appellant company under proviso to Section 11A(1) of the Central Excise Act along with interest on this duty at the applicable rate under Section 11AB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Apex Court in the case of Ujagar Prints and Others v. Union of India (supra), i.e. cost of materials plus job charges plus job worker s profit, in respect of the goods cleared to group companies, alleged to be related persons, for their captive consumption, the duty is required to be paid on the value determined under Rule 8 under Central Excise Rules, 2000 i.e. on the basis of 115%/110% of the cost of production, that sofar as clearances of job work goods is concerned, since the duty has been paid strictly in terms of the Apex Court s judgment in case of Ujagar Prints Ors. v. Union of India (supra), there is no justification for adding the losses suffered by Appellant Company to this value, that sofar as clearances to alleged related persons (group companies) for their captive consumption are concerned, the appellant have paid duty on the basis of 110%/115% price of the cost of production and cost had been determined in accordance with CAS-IV Standard of ICWAI, that in terms of the Board s Circular No. 692/8/2003-CX., dated 13-2-2003, the cost of production is to be determined on the basis of CAS-IV Standard, that in terms of the judgment of Apex Court in the case of C.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the groups companies, the longer limitation period can not be invoked by alleging suppression of facts and hence, the show cause notice dated 29-3-2001 issued for the recovery of allegedly short paid duty during period 1-3-2006 to 8-7-2004 is time-barred, that in view of this, the duty demand of Rs. 6,89,79,871/- is without any basis and is not sustainable, that as regards the Service Tax demand, the same is of only Rs. 3,28,747/-, that the same is also without any basis, that when the duty and Service Tax demands are not sustainable, there is no question of imposition of penalty and that the impugned order is, therefore, not correct. 6. Shri Nagesh Pathak, the learned Senior Departmental Representative, defended the impugned order by reiterating the Commissioner s findings in it and pointing out to paras 4.12 4.34 of the impugned order-in-original, he pleaded that CAS-IV Standard has to be read with CAS-I Standard, according to which for determining the cost interest cost is also to be taken into account. He, however, stated that he has no objection if the matter is remanded to the Commissioner for de novo adjudication after getting the cost of production redetermined by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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