TMI Blog2006 (9) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... rein the brand name 'Britania' are cleared on payment of duty based on the assessable value arrived at taking into account sum total of cost of Raw Material, packing material and Conversion Charges up to February, 1999. With effect from 1.3.2000 the duty on Biscuits is levied based on M.R.P. under Section 4A of Central Excise Act, 1944. The appellants received free of charge from their principal manufacturers certain machinery and rollers and moulders during January 1996 to February 1999 for use in the manufacture of branded biscuits. But they have not included amortised value of the machinery, rollers and moulders, received free of charge from BIL. Therefore, the Revenue proceeded by issue of Show Cause Notice dated 21.12.2000, aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82 onwards as the agreement between the appellant and the customer contained the clause relating to supply of such items for job work and the said agreement was a document related to the assessments completed by the Department. (iii) Even after furnishing details relating to such items on 17.3.1999, no action was taken proposing any differential duty alleging additional consideration till 21.12.2000 when a Show Cause Notice was issued after 1 year and 9 months of the said letter. (iv) Although the above points were raised and argued before the lower appellate authorities, they were not properly considered. Hence, the recovery of differential duty is clearly barred by limitation under Section 11A of the Central Excise Act, 1944. (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following Paragraphs from the Audit Report. As per clause 7 of the agreement between M/s. BIL and M/s. Uttam Biscuits, M/s. BIL shall make available to the proprietary items, to ensure BIL's specifications required for the manufacture said products ....... , which means that the assessees are using, biscuit cutters, moulders, dies, etc., supplied by M/s. BIL free of cost, in the manufacture of biscuits. Even as per the ratio upheld in M/s. Ujagar Prints case i.e. assessable value must be equivalent to manufacturing cost plus manufacturing profit, the amount fixed value of dies, moulds, cutters, etc. must be included in the assessable value of goods. Where as from the cost sheet submitted by the assessee, it appeals that the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter of Food Specialities Ltd., 1985 (22) ELT, the value of the brand and the cost involved in branding is not includable in the assessable value. Consequently, the tools supplied by the customer to enable the affixture of the brand on the goods are outside the scope of the levy and assessment of excisable goods namely biscuits in our case. (b) Cream Laying Machine : The reference to the cream laying machine as if it were lent to us on lease is not correct. It was furnished to us to meet the specific specification of the customer for the goods manufactured and supplied to them. In the normal course of manufacture of the products the machines which we were using were sufficient. But, however, if the customer desires the use of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, they have pointed out that the moulders and cutters have outlived their life span of 1-2 years. They have also clarified that whether it is the machinery furnished by the customer or their own, the cost equivalent to the | depreciation including for the moulders and cutters is taken care of in their gross income and therefore no further addition to the assessable value already declared will be called for. In view of the above, it is clear that the appellants lave been contesting the inclusion of the value of the equipment received from BIL on amortisation basis. One thing is clear that the audit report is based on the agreement between the appellant and BIL. Therefore, the fact of the appellant receiving the proprietary item namely b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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