TMI Blog2015 (4) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration the situation which may have to be dealt with and for guiding the Revenue officials and particularly clauses like clause 29 of the circular dated 30th June, 2000, devise some scheme, then that is bound to be taken note of. In the circumstances, we do not think that the respondents will be only guided by the view taken in the larger Bench decision of the Tribunal. That may have been referred to in the show cause notice, but it is always open for the petitioners to contend that the Tribunal decision cannot have any application to their case. Further, it can be urged that the Tribunal decision cannot be said to be running contrary to or overriding any circulars which , according to the petitioners, bind the department or Revenue. All contentions of the petitioners, including based on the grounds in the writ petition are, therefore, kept open and for being raised - Petition disposed of. - Writ Petition No. 9892 of 2013, Writ Petition No. 1121 of 2014 - - - Dated:- 11-2-2015 - S. C. Dharmadhikari And N. W. Sambre,JJ. For the Appellants : Mr V Sreedharan , Sr. Counsel, Mr Prakash Shah, Shri Jas Sanghavi Ms Niyati Hakani For the Respondents : Mr Vijay Kantha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for a general assumption. More so, when in the case of an adverse adjudication as well, there are multiple remedies under The Central Excise Act, 1944. At this stage, therefore, this Court should refrain from interfering in writ jurisdiction. More so, in the light of the clarification given on behalf of the Revenue. 4. Mr. Kantharia has placed heavy reliance on the judgments rendered by the Hon'ble Supreme Court, firstly in the case of Union of India vs. Guwahati Carbon Limited (2012) 11 SCC Pg. 561. Mr. Kantharia then relies upon the two Division Bench judgments of this Court which follow a Supreme Court decision and particularly on the point of availability of alternate and equally efficacious remedy. 5. To be fair to Mr. Kantharia , he has also attempted to deal with other contentions raised on behalf of the petitioners. These contentions have been summarized during oral arguments and in a brief synopsis by the petitioners . For the view that we propose to take and the final order that is to follow thereafter, we do not deem it fit to refer to other contentions of Mr. Kantharia . 6. On the other hand, while meeting this preliminary objection, Mr. Sreedharan , lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect and assuming them to be true, the department cannot act and proceed contrary to the aforementioned circulars and Rule 8 of the Rules. Therefore, the attempt in issuing the show cause notice and raising the demand is to get over these circular and the clear language of Rule 8. That is issued with the aid and assistance of an order passed by a larger Bench of the Tribunal and which Mr. Sreedharan submits has been rendered in the case of Ispat Industries Limited (supra). Mr. Sreedharan would submit that the decision of the larger Bench of the Tribunal is completely contrary to the judgment of this Court in the case of Indian Drugs Manufacturers Association vs. Union of India 2008 (222) Excise Law Times, Pg. 22. 9. Mr. Sreedharan would submit that this Court did not in the decision rendered in Indian Drugs Manufacturers Association in any way hold that the language of rule 8 admits of a construction as has been placed by the larger Bench of the Tribunal on it. The larger Bench has read into this judgment and the Rule something which is apparently not there. There is no requirement of the entire production being captively consumed and that is how Rule 8 must be read and restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We are of the view that the allegations in the show cause notice are that the petitioners are engaged in the manufacture of cement and ready-mix concrete. The allegations are founded on the position that the petitioners are having plants and units located at various places all over India. The cement and ready-mix concrete manufacturing plants are not located in the same premises. They are independent of each other for operation and accounting purposes. The ready-mix concrete plants of M/s. UltraTech Cement Limited procured cement only from the UltraTech Cement manufacturing plant. All these plants are registered with the department and have been availing of all the benefits and also paying duty in terms of the Act. 14. The allegations then proceed by stating that an intelligence was received which indicated that M/s. Ultra Tech Cement Limited having undervalued the cement cleared by plants to the ready-mix concrete plants and, therefore, in pursuance thereof, some of these manufacturing plants were searched. The officers then seized documents and recorded statements of various officials. These are extensively referred to in the show cause notices and thereafter the allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment, subject, if necessary to such adjustments on account of difference in the date of delivery of such goods and of the excisable goods under assessment as may appear reasonable. 17. Thereafter, cases of valuation based on the transaction value, excluding the cost of transportation in a situation where the excisable goods are sold for delivery at a place other than the place of removal are covered by Rule 5. Then comes Rule 6 where for the purposes of valuation one more instance or guide is provided. 18. Rule 7 then takes into consideration a case where the goods are not sold by the assessee at the time and place of removal but transferred to a depot premises of a consignment agent or any other place or premises (such other place from where the excisable goods are to be sold after their clearance from the place of removal). Rule 8 covers a case of excisable goods which are not sold but are used for consumption by the assessee or on his behalf in the production or manufacture of other articles and in that case, the value shall be in terms of this Rule, but on the cost of production or manufacture of such goods. 19. We have no doubt in our mind that the Adjudicating Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
