2005 (6) TMI 110 - AT - Central Excise

Summary

Issues: Valuation of Aluminium scrap, duty payment, challenge to strip valuation, limitation period for notice issuance

In the judgment by the Appellate Tribunal CESTAT, Mumbai, the appellants contested the valuation adopted by the lower authority and duties confirmed on Aluminium scrap removed by them on payment of duty to a job worker who converts it into strips, which are then received back by the appellants on payment of duty. The notice issued considered the value of Aluminium strip per kg received by the appellants from the job worker, reduced by the job charges and less the scrap value, establishing the differences as undervalued scrap dispatched. The Tribunal noted that there was no mens rea to misdeclare on the part of the appellants, as they could have sent the scrap to a job worker without payment of duty and received back strips without payment of any duty, leading to a situation where less duty was paid. The Tribunal found no revenue loss in this exercise and highlighted that the undervalued scrap should have caused a challenge to strip valuation at the job worker's end. The Tribunal also mentioned a previous notice issued to the appellants on the same basis, which was dropped by the Assistant Commissioner, leading to the current demand and notice being barred by limitation due to the facts being within the knowledge of the department and no suppression or intent to evade being present.

The Tribunal further discussed the application of the formula of a constitutional Bench of the Supreme Court in the case of Fabrics Processors & Ujjagar Prints to determine the value and directed that the demand should be on the job worker if the sale from the job worker to the appellant is not impugned and is on a principal-to-principal basis. The Tribunal found no merits in upholding the orders of the lower authority and, based on the findings, set aside the order and allowed the appeal. The judgment was pronounced in court by the Tribunal.