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2017 (3) TMI 1001 - AT - Central ExciseValuation - IC Engines and parts thereof - goods cleared to sister units - whether the commissioner was justified in issuing SCN without resorting to review of final assessment order - Held that: - the said final assessment orders were not subjected to review and further appeal, in terms of Section 35E - the Commissioner justified the issue of SCN without resorting to review of the final assessment order. His reliance on the sub-Section (5) of Section 35E is found to be misplaced. The said sub-section, though was introduced in 1988 was never notified for implementation. The said sub-section was repealed in 2004 without actually brought into force. It is clear that the learned Commissioner relied on a non-existing legal provision to justify the proceedings against the appellant, in the absence of a review of the assessment order in terms of Section 35E. The learned Commissioner justified the demand on the ground, that the suppression of fact/mis-declaration on the part of the appellant was detected by the Department resulting in the fresh demand proceedings. The impugned order relied on para 5.9 of CAS-4 to hold that the cost of goods should be determined on actual capacity basis. In this connection, we note the CBEC vide Circular dated 13/02/2003 advised that the cost of production of goods cleared for captive consumption has been determined in accordance with CAS-4. Para 5.9 of CAS-4 details with absorption of overheads. It stipulates that the basis should be normal capacity or actual capacity utilization of the plant, whichever is higher - the appellants had furnished complete details required for determining normal capacity in terms of the applicable cost accounting standards. We find that the details submitted by the appellants have not been examined and commented upon by the lower authorities - matter remanded for re-examination. Appeal allowed by way of remand.
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