TMI Blog2009 (11) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... al order, on the ground that the assessee had correctly determined the assess able value of the goods on the basis of the price charged in their sales to independent unrelated buyers for the said period. As regards the second part (2001 to 2003-04) of the period of dispute, the demand of duty with interest thereon was sustained by the Tribunal, after accepting the assessable value determined by the Asstt. Director (Cost) of the Department. In the present application, two mistakes are pointed out. Held that- legal position not taken into account by Tribunal in impugned order. Mistake glaring and need rectification. - E/2032/2006 - M/1152/2009-WZB/C-I/EB - Dated:- 23-11-2009 - S/Shri P.G. Chacko, Member (J) and B.S.V. Murthy, Member (T) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that period also, there were sales to independent unrelated buyers. Secondly, it is submitted that it was not correct on the part of this Tribunal to accept the assessable value determination made by the Asstt. Director (Cost). The ld. Sr. Counsel for the assessee has elaborated the points with reference to the facts of this case as also to Tribunal's order in Bausch Lomb (India) Ltd. v. Commissioner in 2004 (177) E.L.T. 1081 (Tri.-Del.). The ld. Counsel has also invited our attention to Section 14A of the Central Excise Act, particularly to Explanation I thereto. In this connection, he has also referred to the definition of "Cost Accountant" given under Section 2(1)(b) of the Cost and Works Accountants Act, 1959. We have heard the ld. SD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department was appointed under Section 14A of the Central Excise Act to determine the cost of production for the second part of the period of dispute. Under the said provision of law, an independent cost accountant being a member of the Institute of Cost and Works Accountants, in practice, should have been appointed to determine the cost of production. This legal position was adequately clarified by this Tribunal in Bausch Lomb (India) Ltd's case (supra), a decision cited by the assessee before this Tribunal. The legal position is clear from the provisions of Sec. 14A of the Central Excise Act read with the definition of "Cost Accountant" given under Section 2(1)(b) of the Cost and Works Accountants Act, 1959. As rightly pointed out b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te was not taken with due regard to the legal pro visions supported by the case law. 9. Be that as it may, as there were independent sales of identical goods to unrelated buyers during the second part of the period of dispute also, the assessable value should be determined on the basis of the price of the goods covered by such independent sales. It is not in dispute that the assessee determined the assessable value in this manner and paid appropriate duty thereof. The demand of differential duty raised on them is not sustainable. 10. Now that the entire demand of duty stands set aside, there shall be no penalty on the appellant or on the Director of the company. In the result, the impugned order is set aside and this appeal is allowed". ..... X X X X Extracts X X X X X X X X Extracts X X X X
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