TMI Blog2016 (6) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... rsus M/s Sun Pharmaceuticals Inds. Ltd. & Ors. [2015 (12) TMI 670 - SUPREME COURT], the impugned order cannot be sustained and is set aside. - Decided in favour of appellant - Appeal No. E/642 to 644 & 525/08 - A/87832-87835/16/EB - Dated:- 13-5-2016 - SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL) AND SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri Vipin Kumar Jain, Advocate For the Respondent : Shri V.K. Agarwal, Addl. Commissioner (AR) ORDER Per: Raju The appellants, M/s Sharda Synthetics Ltd., were processing grey fabrics received from M/s Karnataka Handloom Development Corporation Ltd. (KHDCL). The appellants were receiving fabrics from M/s KHDCL, and processing and returning the same to M/s KHDCL. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the said charge has been dropped by the Commissioner (Appeals) in his Order-in-Original. He particularly pointed out to para 55 and 56 of the said order, which reads as under: - 55. The show-cause notice alleges that since delivery notes were accompanying each consignment they become delivery challans and therefore, the price of raw material (grey) declared in the said delivery notes should be taken as price of grey fabrics for arriving at assessable value. The show-cause notice seeks to determine the assessable value for shirting and suiting on the basis of the charges mentioned in delivery notes. As can be seen from the facts Narrated above, the price of grey fabrics shown in the delivery notes includes 15% on account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the hands of M/s SSL, KHDCL has made price declaration for excise purpose. I find that in this declaration the price of processed fabrics has been given. This has been arrived at after adding the cost of grey fabrics, processing charges and adding 10% mark-up charges to this aggregate. The price furnished for excise purpose has been worked out by the costing department of M/s KHDCL, by taking in to consideration incidental charges, holding charges, profit etc. and the same has been duly certified by chartered accountants. Further, the officer who has furnished the said declaration has submitted an affidavit certifying the correctness of the said value. In the absence of any positive evidence to the contrary, I have no reason to disbelie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o go beyond the grounds raised in the show-cause notice. In case of Ballarpur Industries (supra), the Hon'ble Supreme Court has observed as under: - 21. Before concluding, we may mention that, in the present case, the second and the third show cause notices are alone remitted. The first show cause notice dated 21-5-1999 is set aside as time-barred. However, it is made clear that Rule 7 of the Valuation Rules, 1975 will not be invoked and applied to the facts of this case as it has not been mentioned in the second and the third show cause notices. It is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocation of Rule 7 of the Valuation Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso to Section 4(1)(a) of the Act, it is difficult to understand as to how the CEGAT applied this provision. In the case of Sun Pharmaceuticals (supra), Hon'ble Supreme Court has observed as under: - 5. We may first take up Civil Appeal No. 3263 of 2009. This has to be allowed for simple reason that the aforesaid reasons given by the CESTAT in support of its view clearly reveals that CESTAT has gone beyond the show cause notice inasmuch as this was not even the case set up by the Department in the show cause notice. 5. In view of the above, the impugned order cannot be sustained and is set aside. The appeals are accordingly allowed. (Operative portion of the order pronounced in Court) - - TaxTMI - TMITax - Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
