TMI Blog2014 (12) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be done in terms of Rule 4 of the Central Excise Valuation Rules, 2000 and not under Rule 8 as proposed in the show cause notice - Decided in favor of assessee. Ascertainment of value at nearest time - Held that:- If more than one price to independent buyer is available, the lowest of such price should be taken as the basis. Inasmuch as the appellant was not put to notice about the basis for determination - matter remanded back to adjudicating authority for this purpose. Penalty u/s 11AC - Invocation of extended period of limitation - Inasmuch as the entire show cause notice has been issued consequent to the decision of the Hon’ble Apex Court decision in the case of IFGL Refractories case (2005 (8) TMI 112 - SUPREME COURT OF INDIA), the question of invoking the extended period of time would not arise. The ratio of this Tribunal’s decision in the case of KDL Biotech Ltd. - [2010 (9) TMI 931 - CESTAT MUMBAI] would apply to the facts of the present case also. Consequently, the question of imposition of penalty under Section 11AC also would not arise. - matter remanded back - Decided in favour of assessee. - E/1087/2007 & E/185, 1105, 1699/2010, E/ 856/2011, E/1460 & 1615 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 to 30-6-2009 4-11-2009 Raigad/ADC/04/10-11 dated 15-6-2010 YDB/158/RGD/2011 dated 22-2-2011 14,27,301/- 5,00,000/- E/856/11 6. 1-7-2009 to 31-3-2010 19-7-2010 16-12-2010 Raigad/ADC/96-97/10-11 dated 14-3-2011 BC/112/RGD/2012-13 dated 25-6-2012 15,05,944/- 3,00,000/- E/1460/12 7. 1-4-2010 to 30-9-2010 21-4-2011 Raigad/ADC/100/11-12 dated 5-12-2011 US/461/RGD/2012 dated 3-8-2012 14,03,998/- 3,50,000/- E/l615/12 8. 1-10-2010 to 31-3-2011 31-10-2011 Raigad/ADC/20 9/11-12 dated 9-3-2012 US/712/RGD/2012 dated 29-10-2012 7,01,872/- 1,75,000/- E/85584/13 9 July, 2002 to January, 2006 6-3-2007 32/SLM/ (32)-Commr /Rgd/07-08 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done and the duty demands were confirmed based on the cost of production plus 10%/15%. Aggrieved of the same, the appellant is before us. 3. The learned Counsel for the appellant submits that the entire exercise started pursuant to Hon ble Supreme Court s decision in the case of CCE, Bhubaneshwar-II v. IFGL Refractories Ltd. - 2005 (186) E.L.T 529 (S.C.) wherein the Hon ble Apex Court was considering a situation where the goods were sold by the manufacturers to certain buyers who were having advance licences. The buyers of the goods surrendered their advance licences in favour of the manufacturers/suppliers. The question before the Hon ble Apex Court was whether the transaction price could be accepted or the consideration by way of surrender of licences should be quantified in monetary terms and treated as an additional consideration for the sale of goods. The Hon ble Apex Court held that the surrender of the advance licences in favour of the manufacturers/suppliers is an additional consideration that needs to be added to the transaction price to arrive at the assessable value and duty should be discharged accordingly. Prior to the Supreme Court s decision, as per the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant in respect of supplies made to their sister concerns would be higher than those declared in respect of sales made to independent buyers and therefore, bulk of the demands would go away. It is also contended that while making the comparison, the adjudicating authority has made an error by taking the prices of different grades of polystyrene which were not the supplies made to sister concern. Accordingly, it is contended that the matter has to go back to the adjudicating authority for reconsideration afresh and if an opportunity is given, the appellant would be able to submit documentary evidences showing that the prices adopted by them in respect of supplies made to sister concerns were in fact higher than those charged for supplies made to independent buyers. It is also submitted that inasmuch as there is no suppression on the part of the appellant, the question of imposition of penalty also would not arise. 4. The learned Additional Commissioner (AR) appearing for the Revenue on the other hand reiterates the findings of the adjudicating authority and submits that the adjudicating authority has been very fair in adopting the price charged for supplies made to indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods sold by the appellant to the independent buyers at the nearest point of time to the goods under clearance should be the basis for re-determination of value. It is immaterial whether such value is prior to the removal of the impugned goods or after removal of the impugned goods. Only condition is that it should be nearest to the time of the removal of the goods for which duty is being demanded. Further, if such value needs adjustment for any reason (say) if the grade/quality is different or the quantum of sale is different, adjustments will have to be made from the value of such goods to determine the assessable value of the goods under clearance. If more than one price to independent buyer is available, the lowest of such price should be taken as the basis. Inasmuch as the appellant was not put to notice about the basis for determination and the same was done only as part of the impugned order (by way of annexure, it would be appropriate to remand the case back to the adjudicating authority for fresh consideration for putting the appellant to notice with regard to the basis adopted for determination of assessable value under Rule 4 of the Central Excise Valuation Rules, 2000. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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