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2020 (1) TMI 755 - AT - Central ExciseValuation - Nitrogen Gas manufactured and cleared to M/s. JSW - Department contends that the appellants have procured liquid Nitrogen Gas at the rate of ₹ 7 to ₹ 10 per cubic meter and sold the same to M/s. JSW at the rate of ₹ 1.90 per cubic meter and thus the appellants have under valued the nitrogen gas sold to M/s. JSW - adoption of Rule 11 of the valuation Rule 2000 or Section 41(a) of Central Excise Act 1944 - revenue neutrality - extended period of limitation. HELD THAT:- With effect from 2000 the concept of value has changed in the Central Excise Parlance. The concept of “transaction value” has been put in place instead of the “normal price” existing earlier. It is not the case of the department that different transaction values do not exist for the product. It is clearly brought out by the Appellants that in terms of the agreement itself, different prices are available for the Nitrogen manufactured from different streams. We find that these two are differently identifiable transaction and as such there is no bar under Section 41(a) of Central Excise Act, 1944 for the existing of two transaction values, Although for the same product and for the same receiver. It is not the case of the department that the price paid or payable by M/s. JSW to the Appellants has been suppressed and differential amounts were being paid by M/s. JSW to the Appellants. In the absence of any such evidence the department contention that the sale value adopted by the Appellants do not represent the actual transaction value is not sustainable. The agreement between the appellant and the customer clearly brings out the difference in pricing. The higher price adopted was only in respect of the clearance of Nitrogen is made out of Liquid Nitrogen purchased by the Appellants. Just because there is a variation in one of two consignment the value cannot be adopted to the entire consignment in the particularly in the era of assessment based on transaction value. The department has not put forth any evidence to demonstrate that amounts over and above the transaction value were collected by the Appellants. On going through the SCN and the adjudication order, it is found that the same have not taken into account the fact that appellants have arrived at the value in terms of Rule 6 of Central Excise Valuation Rules 2000. It has also not been brought on record as to why the calculation arrived at by the appellants has not been discussed and disposed off before calculating in a different manner. Under the circumstances, the matter requires to travel back to the Adjudicating Authority to arrive at the correct assessable value, considering the observations of the bench as above and the submissions of the appellants. Appeal allowed by way of remand.
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