TMI Blog2016 (6) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned orders are unsustainable and liable to be set aside. - Decided in favour of appellant with consequential relief - APPEAL No. E/668/07 - Order No.A/87963/16/EB - Dated:- 7-6-2016 - Mr. M. V. Ravindran, Member (Judicial) And Mr. Raju, Member (Technical) Shri Rohit Gupta, CA for appellant Shri NN Prabhudesai, Supdt. (AR) for respondent ORDER Per M. V. Ravindran 1. This appeal is directed against Order-in-Appeal No.AT/54/M-III/2007 dated 23/02/2007 passed by Commissioner of Central Excise (Appeals), Mumbai-III. 2. The relevant facts that arise for considerations are that the appellant herein is availing Cenvat Credit on Central Excise duty paid on various inputs during the period 01/04/2000 to 21/02/2003. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Supreme Court in Civil appeal No.8557 of 2015 by an order dated 06/05/2016 upheld the judgement of the Tribunal. He produces a copy of the said judgement of the Apex Court. 4. The learned DR on the other hand would submit that the provisions of Rule 57AC of the Cenvat Credit Rules, 2001 needs to be considered in the case in hand. It is his submission that the said rule specifically talks about the determining the value of the inputs cleared as such which would mean that the value has to be re-determined and the case in hand, the value as ascertained from the clearances made to independent buyers would be applicable. He would say and submit that during the relevant period the determination of the value was covered under Section 4 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at the relevant time, read as follows:- 57(1C) When inputs or capital goods, on which credit has been taken, are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to the duty of excise which is leviable on such goods at the rate applicable to such goods on the date of such removal and on the value determined for such goods under Section 4 of the said Central Excise Act, and such removal shall be made under the cover of an invoice referred to in rule 52A. Rule 3(4) When inputs or capital goods, on which CENVAT credit has been taken, are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to the duty of excise which is leviable on such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter unit of the assessee or to another factory of the same company and where no sale is involved. It may be noticed that sub rule (1C) of Rule 57AB of the erstwhile Central Excise Rules, 1944 and Rule 3(4) of the Cenvat Credit Rules 2001 (now 2002, talk of determination of value for such goods and not the said goods . Thus, if the assessee partly sells the inputs to independent buyers and partly transfers to its sister units, the transaction value of such goods would be available in the form of the transaction value of inputs sold to an unrelated buyer (if the sale price to the unrelated buyer varies over a period of time, the value nearest to the time of 8 Page 9 removal should be adopted). Problems will, however, arise where the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferred to a sister unit, it is reasonable to adopt the value shown in the invoice on the basis of which Cenvat Credit was taken by the assessee i.e. the invoice of the supplier of the pellets to the assessee. 12. As it is clear that the present is a case of transfer and not sale of pellets, no infirmity can be found with the Tribunal s judgment, which only follows the circular dated 1.7.2001. In addition, the Tribunal was also correct in holding that post manufacturing expenses cannot be loaded on to the amount equal to the duty of excise leviable on such goods as this amount would, then, cease to be an amount equal to the duty of excise but would be something more. On both these counts therefore, we find that the Tribunal is justif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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