TMI Blog2018 (7) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... ient assistance in the adjudication proceedings. Therefore, the adjudicating authority must be given an opportunity to conform to judicial decisions. The adjudicating authority is directed to evaluate the submissions made by the appellants and the applicability of the cited judicial pronouncement to determine the liability, if any, afresh - appeal allowed by way of remand. - Excise Appeal Nos. 27 to 30/2007 - FO/76035-76038/2018 - Dated:- 12-3-2018 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER And SHRI C.J. MATHEW, TECHNICAL MEMBER Dr. Samir Chakraborty, Sr. Advocate Sri Abhijit Biswas, Advocate Sri S. Guha, A.C. (A.R.) FOR THE RESPONDENT(S) ORDER Per: C J Mathew After hearing the submissions of Learned Senior Counsel for appellants, M/s. Tata Steel Ltd. and others, and Learned Authorised Representative, we are of the view that the matter can be disposed off on the basis of decisions of the Tribunal cited on behalf of the appellants to substantiate the claim that the principles of natural justice have been violated in the impugned proceedings. 2. M/s Tata Steel Ltd, a manufacturer of steel products, had in accordance with the practice prevailing then, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Tisco with reference to individual invoices in order to ascertain as to whether or not the said claim and contention of Tisco are correct and are based on documentary evidence. Accordingly, I have verified the defence submissions of Tisco with reference to each and every individual invoice with documentary evidence furnished by them. The defence submission of the notices in respect of individual invoices and my findings thereon are contained in the statement annexed hereto as Annexure-A which forms part and parcel of this adjudication order. Based on my findings, as indicted in Annexure-A, I have decided and mentioned the demand of duty liable to be confirmed, or as the case may be, dropped in the respective columns of the enclosed Annexure-A against the individual invoices. The month-wise demand amount liable to be confirmed and the demand amount liable to be dropped are summarized herein below.- Month/Year Demand Confirmed Demand Dropped 1 2 3 July 210292.04 296715 Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November 95 6288475.89 519674.85 December 95 5342491.85 0 January 96 11258235.88 207456.75 Febuary 96 4231272.29 33070.6 March 96 9777717.67 691727.38 April 96 1683526.5 331063.4 May 96 1931471.71 251241.45 June 96 3735356.3 277204.77 July 96 3242441.07 1032504.01 August 96 4764705.34 130547.9 September 96(Upto 27/09/1996) 1717681.99 389523.43 Sub-total (A) 215205703.1 56248471.96 September 96(From 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the thirty invoices which did not find place in the reconciliation statement was presumed to be related to the goods that were cleared without payment of duty and this presumption was applied to the invoices listed in annexure to the show cause notice. It is his contention that duty liability had been discharged in all these 30thirty invoices. 6. Placing reliance on the decision of the Tribunal in Thumbay Holdings Pvt Ltd. v. Commissioner of Central Excise, Mangalore [2011 (272) ELT 225 (Tri-Bangalore) which held that ....6.1 The ld. Counsel for the appellants had argued that assessable value was the transaction value. Transaction value was peculiar to each removal as determined under Section 4 of the Act and Valuation Rules. Arbitrary values worked out as average percentage cannot be applied to quantify the duty due. The impugned order has quantified the duty due based on formula worked out on the basis of slip and a couple of invoices. This was not permissible. We have given careful consideration to these arguments of the assessee. We are in agreement with the assessee on this point. We have already held that in order to quantify the duty due, transaction value has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the determination of the value is wrong in the absence of adjustments, a necessity considering the decision of the Tribunal in Rashtriya Ispat Nigam Ltd. v. Commissioner of Central Excise, Visakhapatnam [2005 (191) ELT 1072 (Tri.-Bang.) which held that 3. The appellants are a Public Sector Undertaking producing a vide range of iron and steel products of different grades. They cleared the finished products from their factory to various branches/stockyards on payment of duty. The goods are sold at the branches/stockyards to the customers by raising delivery challancum- invoice. Due to various reasons, certain discrepancies are noticed in respect of quantities of goods dispatched from the factory and the quantities sold from the stock yards/branches. When the stockyard quantity is less than the quantity cleared from the factory, there is excess payment of duty by appellants. On the contrary if the stockyard quantity is more than the quantity cleared from the factory, there is short payment of duty. The appellant took up this matter with the local jurisdictional authorities and ultimately with the C.B.E.C. On this point the C.B.E.C. issued detailed circular dated 23-9- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating authority demanded duty on the excess on the assumption that excess goods had been cleared by the appellants from the factory and the appellants had collected duty on them. In that case, he should have taken into account the shortages and followed the procedure as per Board s circular in arriving at the net duty payable. He has not done that. We also do not find any justification for invocation of longer period. In this case, the appellants themselves have taken up the matter with the Govt. of India regarding the practical difficulties in the accounting system of excess/shortage. Under these circumstances, by no stretch of imagination, one can hold that the appellants removed excess goods with intention to evade payment of duty. Hence longer period under Section 11A cannot be invoked. The adjudicating authority further has ignored Board s circular totally on the ground that the Board s Circular of 1999 cannot be extended to earlier period. 5. The approach of the Commissioner is totally negative. A circular detailing the procedure to solve certain practical accounting problems is issued at a highest level by the Central Board of Excise and Customs. When such a circular ..... X X X X Extracts X X X X X X X X Extracts X X X X
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