9911796707
TMI Blog2002 (1) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is Magnesia Carbon Refractory Bricks (hereinafter referred to as the "said goods"). Steel Authority of India Limited (SAIL) is one of the customers, who purchase the said goods from them by entering into contracts for supply to the units at Rourkela, Bhilai and Bokaro. Dead Burnt Sea Water Magnesite is a raw material for the manufacture of the said goods. This raw material had to be imported during the material period. (b) One of the clauses, in the contracts/purchase orders, which was common to all the purchase orders/contracts, read as follows :- "(3) Advance Licence : - SAIL, BSP will arrange to transfer Nil duty Advance Import Licence to you for the quantity of Magnesia Carbon bricks ordere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ordered the recovery of interest under Section 11AB and passed the following order. (e) The present appeal is against this order for the duty demanded for the period 1-3-1994 to 7-2-1995 vide Show cause notice dated 11-3-1998. 2. We have heard both sides and considered the submissions, and find :- (a) That the Commissioner has considered the question of the invocation of the larger period under proviso to Section 11A and has come to a conclusion as follows :- "9.2 On examining the above contentions, it is noticed from the admission made by them themselves in their own reply that the RT 12 returns had been assessed by the Range Officer until ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 173C(11) and the conditions attached thereto by Collector, Central Excise, Bhubaneswar for enabling the assessee to avail the relaxations under the said rule, was no longer operative during the period covered by the show cause notice i.e., from March 1994 to February 1995. The assessee's reliance upon the permission granted more than six years earlier than March 1994 under Rule 173C(11), the conditions attached to the said conditions, are entirely misconceived, misplaced and factually unsubstantiated. While advancing such contentions, the assessee have conveniently, apparently with due deliberation, disregarded the fact that Rule 173C and deletion of Rule 173C(11) with effect from 1-3-94, the permission granted by the Collector, Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de only a general denial to the allegation that they violated the provisions of Rule 173C and other Rules. They have failed to establish, rather made no worthwhile attempt to establish, that they fully complied with the new procedures as introduced under the amended provisions of Rule 173C with effect from 1-3-94, and that they discharged the statutory obligation of not merely certifying but also ensuring that there existed no consideration, in addition to the sale price declared on invoices/ GP 1s. Instead the assessee have in their defence submissions unduly stressed upon adherence to the procedure and conditions imposed in terms of permission granted by the department more than six years earlier under provisions of then existing Rule 173 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Commissioner, to invoke the larger period of the proviso clause and extracted herein above are valid and we do not find any infirmity in this regard. (b) We find that the Commissioner, has rightly come to the conclusion regarding the fact of additional monetary consideration in addition to price being paid for the goods i.e., transfer of advance import licence in favour of the seller by the buyer enabling the seller of the goods to effect duty free import of the raw materials and bring down the cost of production/ procurement is a consideration, the monetary value of which has to be considered under the provisions of the Central Excise (Valuation) Rules, i.e., Rule 5 of Central Excise (Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has to pay, in case of extra accrual of Rs. 100/- an amount of Rs. 150/- as excise duty. Excise duty is not a confiscatory tax and therefore, whatever accrual is there to the assessee only a part of it, major or minor according to the rate of duty, would have to be paid as excise duty. This would be achieved only if the extra accrual is added to the price and not if it is added to the assessable value." We would also consider that "EXCISE DUTY" to be a cut or a share, only from the 'produces proceeds' and not an additional burden. The same concept has been approved by the Larger Bench in the case of Srichakra Tyres Ltd. - 1999 (108) E.L.T. 361 (T.-LB) = 1999 (32) RLT 1 (CEGAT). We would consider Rule 5 would require the deter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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