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TMI Blog2011 (2) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... ant against the order of the adjudicating authority dated 19.10.2009 has been dismissed. 3. The Addl. Commissioner, Indore by his order dated 19.10.2009 had confirmed the demand of duty amounting to Rs.8,88,718/- along with interest thereon and penalty of Rs.3 Lakh against the appellant. 4. The appellants are engaged in the manufacture of transformers and parts thereof classifiable under Chapter Heading No.8504 of the Schedule to the Central Excise Tariff Act, 1985. The appellants are also availing Cenvat credit on the inputs, capital goods and service tax in accordance with the provisions of the law applicable thereto. 5. A show cause notice dated 5.3.2008 came to be issued to the appellants on two grounds one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formers. For instance in the case of Sumita Tex Spin the voltage ratio was 66/11 KV for 7500 KVA transformer while in case of EPD the voltage ratio was 33/6.9 KV for 7500 KVA transformer. Similarly for Vardhman Fabrics the ratio was 33/11 KV while in case of EPD this was 33/6.9 for 10 MVA Transformer. These difference in designs gives rise to different material contents and usage, thus giving rise to pricing of transformer differently though of same rating. Hence each transformer shall have different price and comparable price formula is totally wrong and cannot be adopted. Even Rule 11 of valuation rules only says that if price cannot be determined by any method of rule 4 to 10, the value can be determined using reasonable means consistent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I agree to the submission of the noticee that the transformers prices do not depend solely on the basis of rating but also requirements of a transformers i.e. material content in transformers, the input/output voltage, line losses desired by the customer, whether online taping is required or off line etc. and consequently the prices of transformers of the same ratings, are not comparable. 8. After recording the above findings in relation to the first charge, the adjudicating authority proceeded to deal with the second charge, which related to the issue of CAS-4 as under:- The allegation in para 3(iv) of the show cause notice, is that the certificate of cost issued by the chartered accountant and relied upon for valuation b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent firms were not comparable on account of various reasons pointed out by the assessee and noted with acceptance by the adjudicating authority. At the same time, the adjudicating authority assumed that as regards the second ground on which the show cause notice was issued, the same was not contested by the assessee when in fact the reply filed to the show cause notice clearly disclosed that the appellants had clearly contested the contention in that regard sought to be raised by the department. Being aggrieved by the order of the adjudicating authority, the assessee preferred appeal before the Commissioner (Appeals), which came to be disposed of by the impugned order. 10. The Commissioner (Appeals) after recording the rival con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there was a clear finding that the prices of different transformers were not comparable for various reasons recorded in the impugned order. There was no challenge by the department to the said finding. Undisputedly, there were no cross objections filed by the department before the Commissioner (Appeals). Being so, the said finding by the adjudicating authority had attained finality. In those circumstances, it was not open to the Commissioner (Appeals) to arrive at any finding contrary to the said finding. However, plain reading of the impugned order discloses that the Commissioner (Appeals) proceeded to decide the issue in relation to the first charge as if the Commissioner was dealing with an appeal at the instance of the department a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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