TMI Blog2011 (4) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of by this Tribunal vide Order dated 13.1.2006, which was appealed by the Revenue before the Hon'ble Supreme Court and the Apex Court vide judgment dated 12.11.2010 remanded the matter for fresh consideration of all the issues raised by both the parties. Therefore, these appeals are listed before us today for final hearing. 3. The issue in this matter relates to the valuation of Aluminium Castings manufactured by M/s Anurag Engg. Co. Ltd (in short AECL), which in turn is based on purchase price of Aluminium Ingots supplied by M/s Bajaj Auto Ltd. (in short BAL). M/s AECL are engaged in manufacturing of Aluminium castings commonly known as 'Handle Bar Body', crank case clutch and casting used as motor vehicle parts classifiable under sub-heading 8708.00 and 8714.00 of the Central Excise Tariff Act, 1985. M/s BAL was supplying the inputs (Aluminium Ingots) after purchasing the same from other manufacturers to AECL for the relevant period under the cover of invoices issued under Rule 57F(2) and Rule 57F(3) of the Central Excise Rules, 1944 after reversing the MODVAT credit availed on the said inputs. 4. A show-cause notice dated 5.3.2001 was issued by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Shri Arshad Hidayatullah, learned Sr. Advocate appeared on behalf of the appellants and submitted that the allegations made in the show-cause notice for under-valuation of Aluminium Ingots are baseless. He submitted that the price charged to M/s AECL by M/s BAL shown in the show-cause notice as Rs.69, 144/- per MT is not the correct value. In fact M/s BAL has cleared the Aluminium Ingots @ Rs.78.25 per kg as per the commercial invoice dated 21.9.1998. He further submitted that the show-cause notice is based on the Central Excise Gate Pass issued by M/s BAL on clearance of the said goods, which shows the reversal of CENVAT credit taken by BAL while clearing the goods to M/s AECL. In fact, against the said goods, the commercial invoices so issued by M/s BAL to M/s AECL is @Rs78.25 per kg and in the invoices, freight and Sales tax have been charged extra. Therefore, the allegation made in the show-cause notice is baseless. Therefore, the show-cause notice is not sustainable as the same is based on wrong facts and prayed that the impugned order is to be set aside. 6. On the other hand, the learned SDR submitted that as per invoices dated 21.9.1998, the commercial invoice wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair market prices, in many cases we are selling at basic price excluding taxes overheads, Prices are agreed prices." Further in his statement Shri Gupta did not made any reference to any commercial invoice. Being in charge and responsible for procurement of raw material and their sale, he would have mentioned such commercial invoices if it were in existence at time , in view of its sustained implication'. In the aforesaid letter it has been further submitted that,- 4. It is also to point out that under the erstwhile Rule 52 A of the Central Excise Rules, 1944 which was operative during the material time, the assessee was required to furnish a certificate on the invoice indicating that the price shown in the invoice was correct and that there was no additional consideration directly or indirectly. Even the impugned Central Excise invoice Dt. 21.09.1998 is also containing such certification by M/s. Bajaj Auto,. Thus the certificate issued under the provisions of Central Excise Rules, 1994 as statutorily required, read with the depositions given by Shri Ranjit Gupta. Vice President of M/s Bajaj Ltd. Under Section 14 of the Central Excise Act 1944 (in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he record as the acknowledgement receipt has been placed by the appellants before us. Therefore, the report dated 25.4.2011 filed by the concerned Commissioner is not correct as per record. Hence, the same is rejected. 10. We further find that in the show-cause notice the allegation is that M/s BAL has cleared the Aluminium Ingots to M/s AECL at a price lower than the price on which M/s BAL has purchased the aluminium ingots from the suppliers. We have also seen the costing sheets in the SCN, which is reproduced herein as under: - (a) Price charged to M/s. Bal for purchase of Aluminium Ingots from Original Mfrs. = Rs. 83,042/- (b) Less discount = Rs. 500/- per M.T. (c) Less Excise duty = Rs. 10,832/- (d) Net Price ( a - b ) = Rs. 71,710/- (e) Freight charges from M/s. Bal to M/s. AECL @ 1% = Rs. 717/- (f) Loading/ unloading charges @ 5% = Rs. 3,585/- (g) Profit of M/s. BAL @ 10% = Rs. 7,170/- (h) Total Price of Alu. Ingots ( d + e + f + g ) = Rs. 83,182/- (i) Price charged to M/s. AECL by M/s. BAL = Rs. 69,144/- (j) Difference in price ( h - i ) = Rs. 14,038/- (k) Difference in percentage = 20% approx. 11. In the written submissions, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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