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2015 (12) TMI 591 - AT - Central Excise100% EOU - Benefit of Notification 23/2003 (condition No.3) - consumption of indigenous raw materials for manufacture of final products - DTA Clearances - Valuation - Section 11A - penalty under section 11AC - Held that:- Board has categorically clarified that jurisdictional officer need to satisfy themselves that the goods in DTA have been manufactured wholly out of indigenous raw material. The said circular also empowers the adjudicating authority to engage Cost Accountant if necessary and get the input and output norms fixed for both indigenous and imported goods. - The computer audit team (CAAP) have been functioning in all the Commissionerates with specially trained officers for carrying out computer based audit. Under these circumstances, we find that the adjudicating authority has various mechanism to satisfy whether indigenous raw materials are used or not, either by appointing special auditor under Section 14A or depute his internal audit team specialised in CAPP audit or to engage cost auditor to audit the unit which is functioning under any ERP system. - Matter remanded back on this issue. Valuation of DTA clearance - majority of goods were cleared to sister unit on stock transfer basis - Held that:- this issue has been settled by various Tribunal decisions wherein the Tribunal held that FOB value of export cannot be adopted for payment of duty for DTA sales. - The appellant being a EOU and by relying Tribunal s decision, we are of the considered view that when the department is not able to bring out clear cut evidence to show that computed value arrived at by the appellant is either manipulated or otherwise, merely taking FOB price for DTA sales is not justified. Therefore, the value adopted by the adjudicating authority by taking the FOB price and the consequential demand of differential duty is not sustainable. Accordingly, the demand of customs duty in respect of four appeals on account of taking FOB price is liable to be set aside. As regards the demand of educational cess and higher secondary education cess thrice while calculating excise duty, we find that appellants have already calculated educational cess twice while computing the transaction value and the same cannot be calculated again. In this regard, the Tribunal’s Larger Bench in the case of Kumar Arch Tech Pvt.Ltd. Vs CCE Jaipur (2013 (4) TMI 482 - CESTAT NEW DELHI), the Larger Bench of Tribunal clearly held that levy of CESS cannot be levied third time. - As regards the demand of educational cess and higher secondary education cess thrice while calculating excise duty, we find that appellants have already calculated educational cess twice while computing the transaction value and the same cannot be calculated again. In this regard, the Tribunal’s Larger Bench in the case of Kumar Arch Tech Pvt.Ltd. Vs CCE Jaipur (supra), the Larger Bench of Tribunal clearly held that levy of CESS cannot be levied third time. - Impugned order is set aside - Decided in favour of assessee.
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