9911796707
TMI Blog2013 (10) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... lear detergent bar, detergent cake and detergent powder packed for retail sale on payment of duty on value determined under Section 4A. Beside this, they also clear detergent powder and sulphonic acid in bulk for captive consumption by their sister concerns and in respect of these clearances, the duty is paid by them on 110%/115% on the cost of production in terms of the provisions of Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 (hereinafter referred to as Valuation Rules, 2000). The period of dispute in this case is from July 2000 December 2002. While according to the appellant, during this period they were clearing the bulk detergent powder and sulphonic acid to their sister concern for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant under Section 11AC ibid. 1.2 The above show cause notice was adjudicated by the Commissioner vide order-in-original No. 28/Commr/Cex/2005 dated 30th November 2005 by which the Commissioner upheld the allegation made against the appellant in the show cause notice and confirmed the above-mentioned duty demand along with interest and beside this, also imposed penalty of equal amount on the appellant company under Section 11AB of the Central Excise Act. In this order, the Commissioner held that during the period of dispute, the appellant had not determined the cost of production and, hence, the assessable value, correctly with intent to evade the payment of duty and that the certificates of Chartered Accountant produced by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of CCE, Aurangabad v. Raymonds Ltd. reported in 2006 (204) E.L.T. 3 (S.C.), that in terms of the CAS-4 standard, for determining the cost of production, the marketing and distribution expenses and head office expenses are not required to be added and administrative over-heads in relation to activities other than manufacturing activities like marketing, corporate office expenses etc. are to be excluded from the cost of production, that Commissioner's observation in the impugned order that costing had not been determined in terms of CAS-4 is factually incorrect, that in any case the duty demand is totally time barred, as throughout during the period of dispute, the cost of production and the assessable value adopted by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d penalty on them under Section 11AC has been correctly invoked. He also pleaded that the ratio of the Tribunal's judgment in the case of Jay Yuhshin Ltd. v. CCE, New Delhi (supra) is not applicable to the facts of this case. He, therefore, pleaded that there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. In this case there is no dispute that in respect of clearances of the bulk Surf Excel powder and clearances of sulphonic acid by the appellant unit to its sister concern, duty is required to be on the value determined under Rule 8 of the Valuation Rules, 2000 i.e. on 115%/110% on the cost of production. The dispute is only over determination of the cost of prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been pointed the exact objection of the department in respect of the same. In our view, therefore the matter has to be remanded for de novo adjudication after determining the cost of production of both the products during each financial year during the period of dispute strictly in terms of CAS-4 standard and in that format by a Cost Accountant appointed by the department and in the light of the Cost Accountant's certificate regarding the cost of production of the products, in question, during each financial year, the matter must be re-adjudicated. 8. As regards, the question of limitation, while the appellant pleads that throughout during the period from April 2000 to March 2003 they had submitted price lists declaring the price of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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