9911796707
TMI Blog2013 (3) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... As per invoices issued under Rule 11 of the Central Excise Rules, 2002, the goods have been shown exported under LUT and not on payment of duty to claim the rebate. (ii) Prior to the month of Feb. 09 the assessee had been exporting lead concentrate @ Rs. 22,000/- per DMT under LUT. Even on 11-2-2009 the assessee had exported 579.550 DMT lead concentrate @ Rs. 22,000/- per DMT under claim of rebate of duty vide ARE-I No. 54 dated 11-2-2009 and invoice No. 11553 to 11578. But the same goods were cleared for export during 12-2-2009 to 20-2-2009 under ARE-I Nos. 55 to 63 and invoice Nos. 11579 to 11581 and 11583 to 11683 @ Rs. 74,000/- per DMT under claim of rebate of duty. Thus the assessable value of the said goods for export under claim of rebate of duty appeared abnormally high with the sole objective to encash the accumulated Cenvat credit by way of overvaluation of export goods. The Assistant Commissioner of Central Excise Division, Udaipur vide impugned Order-in-Original, sanctioned rebate of Rs. 77,27,060/- in cash and allowed re-credit of Rs. 1,20,76,183/- to the assessee by taking into consideration the assessable value as Rs. 24200/- pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransaction value" of export goods in terms of Section 4 of the Central Excise Act, 1944 as the Act extends to India only. As per agreement made between the applicant and buyer, there was no contract price for sale of "lead Concentrate", the price was to be determined with reference to lead payable metals less "treatment charge and refining charges" as quoted in London Metals Exchange and published in the "London metals Bulletin". The transaction value of Rs. 74,000/- for the goods exported to the foreign buyer namely M/s. MRI Trading, Switzerland based on settlement prices US$ per tonne for Feb. 2009 for "payable metals" and not for lead concentrate. The price is to be determined on daily basis as per the condition of para 5.1 of the agreement. 5.2 The applicant had exported lead concentrate @ Rs. 22,000/- per DMT under LUT but from the month of Feb. 2009 are clearing the said goods @ 74,000/- per DMT for export under rebate. Thus the value/price of the said goods for export has been increased abnormally by the applicant. They are also clearing/transferring the said goods to their sister concern @ 24,200/- per DMT. Thus the applicant has increased the price by Rs. 52,000/- su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted by the applicant. Further the applicants contention that para 5 of the agreement spells out the mechanism of determination of price is not tenable as there was no contract price for sale of lead concentrate in para 5 of the said agreement dated 21-1-2009 signed between the applicant and M/s. MRI Trading AG, Switzerland. The price was to be determined with reference to "Payable metals less treatment charge and refining charges" as quoted in London Metals Exchange and published in the "London Metal Bulletins". 6. Personal hearing was scheduled in this case on 9-10-2011, 6-12-2012 and 21-2-2013. Hearing scheduled on 6-12-2012 was attended by Shri Apurva Bhattacharya, Advocate and Shri V.V. Nandawat, AGM (Finance) on behalf of the respondent who reiterated the grounds of Revision Application. Nobody attended hearing on behalf of respondent department on any of the above said dates. 7. Government has carefully gone through the relevant case records and perused the impugned Order-in-Original and Order-in-Appeal. 8. Government observes that in this case the applicant filed rebate claim of total amount of Rs. 1,98,03,243/-. The original authority observed that the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority adopted cost construction method under Rule 8 of Central Excise Valuation Rules, 2000 which comes to Rs. 24,200/- for the goods transferred to the sister concern unit by the applicant. 9.2 In view of above position, the assessable value of Rs. 24,200/- per DMT is rightly determined by the lower authority is in accordance with provision of Section 4(1)(b) read with Rule 8 of Central Excise Valuation Rules, 2000 by adopting cost construction method. 10. Government observes that w.e.f. 1-7-2000, the concept of transaction value was introduced for valuation of goods under Central Excise Act. Though the C.B.E. & C. Circular 203/37/96-CX., dated 26-4-1996 was issued when transaction value concept was not introduced yet the said circular clearly states that AR-4 value of excisable goods should be determined under Section 4 of Central Excise Act, 1944 which is required to be mentioned on the Central Excise invoices. Even now the ARE-1 value is to be the value of excisable goods determined under Section 4 of Central Excise Act, 1944 i.e. the transaction value as defined in Section 4(3)(d) of Central Excise Act. C.B.E. & C. has further reiterated in its subsequent Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X
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