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2010 (10) TMI 369 - CESTAT, NEW DELHIValuation - Job work - the goods manufactured by the Appellant on job work basis were being cleared by the merchant-manufacturers from the Appellant’s factory itself - According to Department, the duty was to be paid on the sale price charged by the merchant-manufacturers from their customers - As per the Hon’ble Supreme Court’s judgment in case of Pawan Biscuits Co. (Pvt.) Ltd. v. CCE, Patna (2000 -TMI - 45451 - SUPREME COURT ), the goods manufactured on job-work basis were sold by the merchant-manufacturers at the Appellant’s factory premises, the duty is payable only on the cost of raw materials plus job charges including job-worker’s profit, not on the merchant-manufacturer’s selling price as it includes merchant-manufacturer’s profit margin also. Demand - Comparable price of identical goods - Duty demand has been confirmed relying upon the comparable price of identical goods - In this case, the assessable value has been determined on the basis of the “comparable price of identical goods”, which is not correct - The order does not discuss as to how the goods, whose price has been adopted, are identical to the goods under assessment - There is also no discussion of the Appellant’s plea that the expenses incurred on freight & octroi are included in the cost of the raw materials - Therefore, in respect of this part of the duty demand, the matter has to be remanded to the Commissioner (Appeals) for de novo decision. Demand - Limitation - Suppression of facts - Apex Court in case of Pushpam Pharmaceuticals Company v. CCE, Bombay (1995 -TMI - 44049 - SUPREME COURT) has held that since the word, “suppression” in proviso to Section 11A(1) is accompanied by strong words as “fraud” or “collusion”, it has to be construed strictly, that mere omission to give correct information is not suppression of facts unless it was deliberate to evade the payment of duty - Thus, the impugned order does not discuss as to how the Appellant’s act or omission in this case constitutes “suppression of facts” - Demand set aside
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