TMI Blog2007 (12) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... notice which sought the determination of value under Rule 3 as has also been observed by the Apex Court in the case of Hindustan Polymers Co. Ltd. v. CCE [ 1996 (12) TMI 84 - SUPREME COURT] that the Tribunal proceeded upon a basis altogether different from that of the demand notice served upon the assessee is not moulding relief but making of new case and also by the Tribunal in the case of Volvo India Private Ltd. v. CC,[ 2004 (10) TMI 218 - CESTAT, BANGALORE] holding that the Commissioner (Appeals) cannot travel beyond the scope of original show cause notice, we observe that it was the Commissioner who if at all has gone beyond the show cause notice in his order-in-original and that part has not been challenged by the Revenue before the Tribunal as its appeal was firstly dismissed as time barred and second time again this aspect was not looked into and this order was again not challenged by the Revenue and therefore this plea cannot be taken at this stage. We also notice from the appeal filed by the Revenue against the Commissioner s order of 1998 that it was never a ground that remand proceedings of the Commissioner could not have gone beyond the show cause notice. It only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. [Order per : K.K. Agarwal, Member (T)]. - These are two appeals, one filed by M/s. Kalyani Sharp India Ltd. and the other by the Revenue. Since both are from the same Order-in-Original, they are being decided together. The appellant M/s. Kalyani Sharp India Ltd. was at the relevant time engaged interalia in the manufacture and export of Video Cassette Recorders and were 100% EOU. They were granted permission to sell VCRs in accordance with FXIM policy in force from time to time. The appellants cleared VCR from its own depots in the DTA on payment of duty, availing benefit of Notification 2/95-C.E. at the prevalent FOB value of the said goods and these goods were sold in retail from the depot. They were issued show cause notice on 23-7-1998 wherein it was alleged that they had mis-declared the DTA sale price by adopting the export price of VCR as against the actual transaction value of VCR when sold in the DTA. The notice proposed to value these goods under Section 14 of the Customs Act, 1962 read with Rule 3 of the Customs Valuation Rules 1988 on the basis of transaction value charged from the buyers in the DTA and demanded differential duty amounting to Rs. 4,27,31,173/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the subsequent period, the Commissioner s order was set aside and the issues were required to be determined as per the Tribunal observation in the said order. 6. The remand proceedings against the Commissioner Order-in-Original dated 31-12-1998 were initiated and decided by the Commissioner, Pune vide Order-in-Original dated 26-10-2006 wherein the demand was restricted for the normal period but instead of determination of value under Rule 7A as per the remand order, the Commissioner held that the appropriate value for the DTA sales of VCR would be the CIF value of such goods of similar quality imported into India during the relevant period and only if such value is unavailable, can recourse be taken to the various rules of the Customs Valuation Rules 1988 including Rule 7A. From the records the Commissioner observed that there has been import of a similar item by the noticee himself during the above said period whose CIF value as per the bill of entry was adopted for the purpose of valuing the VCRs cleared by the assessee in the DTA and he confirmed duty liability of Rs. 2,16,36,053/- along with interest. 7. It is against the above order that both Revenue and as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the transaction value in terms of Section 14 of the Customs Act read with Valuation Rules was the price at which the goods were sold from the depot to the buyer. 2. Accordingly, notice was issued on 23-7-1998 demanding duty on the clearances made from the 100% EOU between October, 1995 to March, 1998. The notice invoked the extended period contained in proviso to sub-section (1) of Section 11A of the Central Excise Act on the ground that the appellant had not disclosed to the department the transaction value. 3. Adjudicating on this notice, the Commissioner accepted the contention that the clearance from 100% EOU to the domestic tariff area could be deemed to be an import into the country, as laid down by the Tribunal in CCE, Pune v. Champagne India Ltd. - 1998 (104) E.L.T. 134. Therefore, he said the transaction value under Rule 3 had to be accepted. He said that since the value of comparable value was not available, the valuation was sought to be done under Rule 7A, Rules 4, 5, 6 and 7 of the Valuation Rules being excluded in the absence of similar or identical goods imports. He therefore applied Rule 7A, which provides for computing value on the cost of raw material, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six months for the relevant date. He shall also indicate to the appellant the basis for valuation under Rule 7A of the Valuation Rules. Thereafter he shall after considering the submissions there may be made, adjudicate upon these issues in accordance with law. 9. The assessee s contention that, against the 1998 s order of Commissioner they have gone in appeal and in their grounds of appeal in Para 7, they have very categorically stated that the appellants are not filing this appeal against that part of the said order dealing with determination of assessable value under the said Rule 7A of the Customs Valuation Rules for the purpose of computation of value in respect of the said goods which were removed from 100% EOU to DTA. The appellants are, however, filing this appeal for the limited purpose of challenging the order dated 31-12-1998 on the grounds that having invoked the extended period of limitations under the Proviso to Section 11A(1) of the said Act and on the quantification of the allegedly short levied amount of Rs. 25,20,344/-. According to the appellants no duty is payable even for the larger period by following Rule 7A as per the working shown in Exhibit F heret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended this scope. If Revenue was not satisfied with it and wanted an open remand it should have challenged the subsequent order of the Tribunal. We are in agreement with the appellants views that once the remand was given on their appeals in which it has been asserted by them as well as confirmed by the Tribunal in its order, that the correct value is to be determined under Rule 7A, which they are not challenging but they are only contesting the computation of demand under Rule 7A, the remand order cannot affect that part of order which they are not challenging. The Revenues contention that the remand order could not have gone beyond the scope of the show cause notice which sought the determination of value under Rule 3 as has also been observed by the Apex Court in the case of Hindustan Polymers Co. Ltd. v. CCE, Guntur - 1999 (106) E.L.T. 12 (S.C.) that the Tribunal proceeded upon a basis altogether different from that of the demand notice served upon the assessee is not moulding relief but making of new case and also by the Tribunal in the case of Volvo India Private Ltd. v. CC, Chennai - 2005 (180) E.L.T. 489 (Tri. - Bang.) holding that the Commissioner (Appeals) cannot travel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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