TMI Blog2015 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Act and Rules thereunder has tendered his opinion it would not be open to any one to take a contrary stand, unless and until such technical opinion is displaced by specific and cogent evidence in the form of another technical opinion. Merely by approaching the matter by stating that the goods could be converted into palm oil of edible grade by carrying out certain processes, the respondent No. 3 who is an officer of the department cannot displace the report of technical expert, nor can he insist that inspite of such report the importer must establish that end-use of the product shall not be other than one as regards entry in which the goods admittedly fall at the time of import. Adjudicating authority was not justified in rejecting the valuation done by a Chartered Accountant when it is subsequently also certified that the valuation is done as per Accounting Standards-10. The adjudicating authority was not right in deciding the original valuation of plant and machinery himself, in the absence of any contrary expert opinion. - Decided in favour of assessee. - Appeal No. E/491/2010, E/398-399/2012 - Order No. A/10400-10402/2015 - Dated:- 27-4-2015 - Mr. P.K. Das, Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed earlier. That even after the amendments carried out under Notification No. 23/2001 dated 28.6.2001 appellant filed a certificate dated 20.9.2001 from the same Chartered Accountant that valuation of fixed assets was done as per the Accounting Standard 10 (AS-10) prescribed by Institute of Chartered Accountants of India. Learned Advocate made the bench go through the certificates issued by the Chartered Accountant which were also produced before the adjudicating authority. 2.2 Learned Advocate further argued that as per the legal requirement under Rule 96 ZNB(1) of the Central Excise Rules, 1944, appellant was required to declare the original value of investments in the prescribed format duly certified by a Chartered Accountant or Cost Accountant. That as per the prescribed conditions of the Compounded Levy procedure Commissioner can not reject the valuation done by a Chartered Accountant as per his own interpretation and best judgment. Learned Advocate relied upon the following case laws in support of his arguments:- (i) Dayang Tea Estate vs. CCE, Shilong [2005 (186) ELT 342 (Tri. Kolkata)] (ii) Farm Fresh Foods Pvt. Limited vs. CCE, Chandigarh [2009 (241) ELT 74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in plant and machinery installed in the appellant s factory is without jurisdiction because the Commissioner had no authority in law to undertake such exercise himself, and therefore the order passed him is void. 3. Shri K. Sivakumar (AR) appearing on behalf of the Revenue and through the written submissions made the following submissions:- (i) That as per the detailed reasoning given by the Adjudicating authority the Original value of the assets was more than ₹ 3 Crore, therefore, appellant was not eligible to Compound Scheme. (ii) That subsequent amendments to Notification No. 16/2001-CE dated 30.4.2001, introduced through Notification No. 32/2001-CE dated 28.6.2001 and 41/2001-CE dated 21.9.2001 were retrospective in nature and the Original Value of plant and machinery was required to be done as per Accounting Standard issued by the Institute of Chartered Accountants of India. (iii) That adjudicating authority got the original value of plant and machinery verified from the jurisdictional Deputy Commissioner based on the balance sheets of the appellant. (iv) Learned AR relied upon the Rajasthan High Court s judgment in the case of Sulzer Processors Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this notification:- (2) Notwithstanding anything contained in sub-paragraph (1), in respect of a processing factory existing as on 1st May, 2001, the application made by an independent textile processor, on or before the 20th May, 2001, to the Commissioner of Central Excise under sub-Rule (2) of Rule 96ZNA for availing the special provisions contained in Section E-XA of the Central Excise Rules, 1944, for the period on and from 1st May, 2001 to 31st March, 2002, shall be deemed to be an application made under sub-paragraph (1). If such application had been granted by the Commissioner of Central Excise on a date prior to 1st day of July, 2001, the same shall be deemed to have been granted under sub-paragraph (1), subject to all the conditions and limitations as laid down in this notification. Otherwise, the Commissioner shall dispose of the application as if it is an application made under sub-paragraph (1). 4.2 By another amending notification No. 41/2001-CE dated 21.9.2001, the following explanation was added to paragraph 8 of Notification No. 32/2001-CE dated 28.6.2001:- Explanation. For the removal of doubt, it is hereby clarified that the original value of the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the doubts, if any, in the original Notification were quelled and removed. In the given circumstances, Notification No. 41/2001 cannot be held inapplicable to the appellant. 6. The above interpretation made by the Hon'ble Rajasthan High Court only gave a ruling that subsequent Notification No. 32/2001-CE dated 28.6.2001 and 41/2001-CE dated 21.9.2001 are only clarificatory and will also be applicable to the original notification regarding deciding the value of plant and machinery. There can not be any two opinions on the interpretation so made. 7. It is revealed from the records that the appellant filed application in proper form ASP-I duly certified by the Chartered Accountant as required under Rule 96ZNB (I) of the erstwhile Rule 1944. By a letter dated 02.7.2001, the appellant was asked as to why their application under Rule 96ZNA should not be rejected as the Deputy Commissioner of Central Excise verified and reported on the basis of Balance Sheet the original value of plant and machinery was more than three crores. The appellant submitted reply to the said letter and enclosed another certificate dated 20.09.2001 of the same Chartered Accountant, which reads as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority was not satisfied by the certificates given by the Chartered Accountant, then he could have asked the appellant to furnish such a certification as prescribed from another Chartered Accountant but can not himself decide the valuation of plant and machinery on the basis of presumptions, when statute demands such a certification to be done by a Chartered / Cost Accountant. Alternatively he could have also got the cost auditing done from an appropriate authority, where appellant could also explain his view point before the expert, as correctly brought out by the Learned Advocate of the appellant when contesting the case law of Sulzer Processors Pvt. Limited [2010 (262) ELT 641] relied upon by the learned Authorised Representative. 10. On the above issue, the ratio of law laid down by jurisdictional Gujarat High Court in the case of Inter Continental (India) vs. UOI [2003 (154) ELT 37 (Guj.)] is very relevant. Para 19 of this judgment is reproduced below:- 19. Mr. Patel during the course of discussion referred? to the provisions of Prevention of Food Adulteration Act, 1954 as well as Rules thereunder with special reference to Sec. 6 of the said Act and Rule 5 which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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