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Commissioner of Central Excise and Service Tax LTU Versus M/s. Chemplast Sanmar Ltd.

2016 (9) TMI 785 - MADRAS HIGH COURT

Validity of order of tribunal in remanding back the case to Superintendent - According to the appellant (revenue), the Tribunal, while remanding the matter, failed to consider the fact that the Superintendent was not the proper authority to finalise provisional assessment, under Rule 9(B) of the erstwhile Central Excise Rules, 1944 and that the Tribunal has not addressed the question, as to whether, an appeal against the Superintendent's letter is maintainable or not, in the absence of any chall .....

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opportunity of being heard or personal hearing, should be provided and read into a provision. Reading of Rule 6(b)(i) of the Central Excise (Valuation) Rules, 1975, in our considered view does not mandate the Jurisdictional Superintendent, Central Excise to provide an opportunity of hearing, for computation of duty to be paid by an assessee. In the light of the discussion and various decisions, we are of the considered view that the directions of the Tribunal, to the Jurisdictional Range office .....

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ot - Held that:- in the case on hand, provisional assessment has been directed to be finalised as per the order-in-original dated 22.05.1998 passed by the Assistant Commissioner of Central Excise, Central Excise Division, Cuddalore. Dai Ichi Karkaria's case has been decided on 11.08.1999. Perusal of the order-in-original dated 22.05.1998 does not indicate, any reference to the above said judgment. As observed earlier, there was no challenge to the order-in-original and therefore, when the appeal .....

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d the decision of the Tribunal. - Therefore, the range jurisdictional officer is bound to take note of the decision of the Hon'ble Apex Court and compute the value of excisable goods under assessment. We make it clear that while doing so, the jurisdictional officer is under no obligation in law to provide an opportunity of hearing to the assessee. He is required to only compute the value and the differential duty, as per the rule and decision of the Hon'ble Apex Court. - Whether the app .....

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uperintendent, in arriving at the value of the excisable goods, under assessment and differential duty, if any, paid by the assessee, which is put to challenge, by way of an appeal. Adjudicating authority has directed the Superintendent to report compliance. But even before the Adjudicating authority could pass a final order, the assessee has filed the appeal, against the letter of the Superintendent. Valuation has to be done, only in accordance with Rule 6(2) of the Central Excise Valuation Rul .....

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Supreme Court, was not placed before the authorities. Adjudicating authority has directed the Superintendent to finalise the RTI2 assessment and report compliance. Perusal of the letter dated 20.11.1998, also shows that after computation, the Superintendent has marked a copy of the same to the adjudicating authority. In ordinary circumstances, this court would hold that an appeal against the letter of the Superintendent is not maintainable, in the light of Flock India Pvt Ltd.'s case (supra) Bu .....

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Miscellaneous Appeal is directed against the Final Order No.515 of 2010, dated 04.05.2010, read with Miscellaneous Order No.371 of 2011, dated 25.07.2011, passed in the Application for Rectification of Mistake E/ROM/62/2010, filed against the Final Order No.515 of 2010, dated 04.05.2010, passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai. 2. Facts leading to the appeal are that M/s.Chempast Sanmar Ltd, PVC Division, respondent herein, are manufacturers of denatured ethyl .....

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rice of comparable goods should be adopted and further details were required, for arriving at the manufacturing cost of the product. The respondent was issued with notices dated 16.03.1995, 13.02.1996, 17.02.1997 and 21.05.1997 respectively, proposing finalisation of the provisional assessment for clearances made during various periods, on the basis of comparable goods manufactured and sold by M/s EID Parry (I) Ltd. 3. After due process, the Assistant Commissioner of Central Excise, Cuddalore Ce .....

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ls used. In case the same is not added so far, it may be added to arrive at the assessable value, as cost of the product includes duty suffered on the raw materials as well as other expenses like transportation cost of the same." He then ordered the value to be arrived in terms of the Rule 6b(ii) of the Central Excise (Valuation) Rules, 1975 and the assessments of RT 12s be finalised in line with the conclusion of this order." The respondent did not challenge the order of the Assistant .....

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1999, against the Superintendents letter, dated 20.11.1998, before the Commissioner of Central Excise (Appeals), Tiruchirapalli. Due to re-organisation of the jurisdictions in November 2002, the appeal was subsequently, transferred to the Commissioner of Central Excise (Appeals), Chennai. The appeal was renumbered as Appeal No.249/2002-(P) and disposed of the same, vide Order-in-Appeal No.216 of 2003(P), dated 12.06.2003. 5. In the appeal, the Commissioner (Appeals) found that the Order-in-Orig .....

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ore the CESTAT, South Zonal Bench Chennai. The said appeal came to be disposed of, by the Tribunal, vide Final Order No.515/2010, dated 04.05.2010, by which, the Tribunal remanded the matter to the jurisdictional Superintendent to consider the submissions of the respondent, and the judgment rendered in Dai Ichi Karkaria Ltd., reported in 1996 (81) ELT 676. 7. The Tribunal remanded the matter, on the ground that the Superintendent has not given the respondent, an opportunity of hearing, before di .....

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tion, as to whether, an appeal against the Superintendent's letter is maintainable or not, in the absence of any challenge to the Assistant Commissioner's order. Therefore, an application for rectification of mistake, in terms of sub-section (2) of section 35C of the Central Excise Act, 1944, was filed in E/ROM/62/2010. However, the said application came to be disposed of, vide Misc Order No.371/2011, dated 25.07.2011, observing that there was no mistake apparent from the record. 9. Bein .....

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zation of provisional assessment? (2) Whether the Hon'ble Tribunal, while passing Miscellaneous Order No.371/2011, dated 25.07.2011, was correct in dismissing the department's application was Rectification of Mistake E/ROM/62/2010, in Final Order No.515 of 2010, dated 04.05.2010, wherein, grounds for rectification of mistake had been raised on the lines of the foregoing questions of law? (3) Whether the appeal filed against the Superintendents letter O.C.No.1251 of 1998, dated 20.11.1998 .....

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the proper officer.", the appellant has contended that proper officer has been designated as the Deputy or Assistant Commissioner of Central Excise and therefore, the Superintendent is not the proper officer, to finalise the provisional assessment. 11. Referring to Rule 7(3) of the abovesaid Rules, the appellant has further submitted that the Superintendent's letter, dated 20.11.1998, is not an order of final assessment, but issued only to implement the finalisation order passed by the .....

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h the Tribunal has set aside the Order of the Commissioner (Appeals), it does not have the effect of setting aside the order of the Assistant Commissioner, as the Assistant Commissioner's order, not being the subject matter of appeal, has not merged with the Commissioner (Appeals) order. Further, as the Assistant Commissioner's order has neither been challenged nor set aside by any judicial / quasi judicial authority, and therefore it is still operative. 13. The appellant further submitt .....

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re, there is an error apparent from the record, and in such circumstances, the Tribunal ought to have entertained the appeal. 14. Placing reliance on CCE Vs Flock India Pvt. Ltd. reported in 2000 (120) ELT 285 SC, the appellant has further submitted that when an order, which is appealable under the Act is not challenged, then the order is not liable to be questioned, the matter should not be reopened in any other proceeding. 15. Per contra, the respondent has submitted that they are the manufact .....

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nsumption. However, the Departments stand was that valuation was required to be done in terms of Rule 6b(i) of the erstwhile Central Excise Valuation Rules, 1975, on the basis of the value of comparable goods. On the other hand, the assessees case was that since no comparable goods were being cleared by other manufacturers, the methodology provided under Rule 6b(i) of the said Valuation Rules, would alone be applicable. In terms of Rule 6b(ii), value is required to be determined the basis of cos .....

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espondents case that the valuation was required to be done in terms of Rule 6b(ii) and to drop the show cause proceedings initiated against the respondent. However, the Assistant Commissioner observed that the duty element on the raw materials used did not appear to be included in the value and directed the Superintendent of Central Excise, Range-1, Cuddalore, to quantify the differential duty, if any, on the raw material and finalize the Assessment. 17. Thereafter, the Superintendent of Central .....

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esponded to this letter by way of an endorsement to the same letter, calling for reasons for non-inclusion of input duty in the cost of denatured spirit. In response to this query of the superintendent, the respondent clarified, by letter, dated 22.01.1999, that as per the CEGAT larger bench decision in the Dai Ichi Karkaria case, the duty element on the inputs is not required to be taken as a part of the cost of raw material and if the department did not agree to this, due process of law should .....

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duty. The Commissioner Appeals, without going into the merits of the case dismissed the appeal, on the ground that the Order in Original, dated 22.05.98, had not been challenged by the respondent. On Appeal to CESTAT against this Order, the Tribunal, after taking into account the valuation dispute, passed an order, dated 04.05.2010, and noticing that the Superintendent has not given an opportunity of hearing before directing the respondent to pay the differential duty, remitted the case for fres .....

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Karkaria's case, and therefore, there is no need to interfere. It is also submitted that when there is a violation of the principles of natural justice, there is nothing wrong in directing the Superintendent, to give an opportunity of hearing. For the above said reasons, respondent has prayed to sustain the order impugned. Heard the learned counsel for the parties and perused the materials available on record. 19. Appellant is a manufacturer of denatured ethyl alcohol at its plant, Kadampuli .....

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dia Ltd., Nellikuppam for sales at any given point of time for payment of Central Excise duty payable on denatured ethyl alcohol cleared by them for captive consumption, being the value of comparable goods in terms of Rule 6(b)(i) of Central Excise (Valuation) Rules, 1975 and consequently, to reassess the duty on goods cleared and pay the difference, if any in terms of Rule 173(4) of Central Excise Rules, 1944. Subsequently, vide Order-in-Original No.30/98 dated 22.05.1998 has been passed by the .....

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ufactured and cleared by the assessee to their own unit at Mettur Dam and the DNS manufactured and cleared by M/s.EID Parry (I) Ltd., Nellikuppam to IMFL and others are not comparable goods of same kind and quality so as to arrive at the assessable value in terms of Rule 6(b)(i) of Central Excise (Valuation) Rules, 1975. Alternatively, the value is therefore to be determined under Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975 on the basis of manufacturing cost plus manufacturing pr .....

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Ch 72/17/31/94 VC dt.16.3.95 & 13.2.96 and C.No.V/R.II and 17/20/97 VC dt. -.2.97 and C.No.V/RI and 17/20/97 VC dt.21.5.97, the proceedings initiated for adoption of the value of the DNS sold by M/s.EID Pary (I) Ltd. in the assessee's case are dropped. 2. The value is ordered to be arrived at in terms of the Rule 6 b(ii) of the Central Excise (Val) Rules, 1975 and the assessments of RTI2s be finalised in line with the conclusion of this order. 3. Duty if any short paid is ordered to be p .....

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se (Valuation) Rules, 1975: (b) Where the excisable goods are not sold by the assessee but are used or consumed by him or on his behalf in the production or manufacture of other articles, the value shall be based - (i) on the value of the comparable goods produced or manufactured by the assessee or by any other assessee: Provided that in determining the value under the sub-clause, the proper officer shall make such adjustments as appear to him reasonable, taking into consideration all relevant f .....

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vailable in the findings and discussions, and in working out the cost of duty element on the inputs used is not included, and the same should be included for the purpose of arriving at the cost, and taking note of the declared cost/KL, Final cost/KL for the years 1994-95, 1995-96, 1996-97, 1997-98, the Superintendent has computed the differential cost at ₹ 1,14,29,086/-. The Superintendent, vide letter dated 20.11.1998 has requested the respondent to pay the above said differential duty fo .....

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ddalore in File No.c.No.V/RI Cud/17/20/97 VC daed 22.05.98 - issued Order -in-Original No.30/98 finalising Provisional Assessment for the financial year 1997-98. No appeal was preferred against this order by the Appellants. Thus this order has attained finality. Based on this order, the Superintendent of Central Excise, Range I, Cuddalore issued a letter bearing OC No.1251/98 dated 20.11.98 directing the Appellant to pay differential duty of ₹ 1,14,29,086/-. This impugned Appeal has been f .....

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nged by refund claim". This ratio is directly applicable to the facts of the present case. Appeal rejected." 23. Being aggrieved by the same, the respondent M/s.Chemplast Sanmar Ltd., Chennai has filed Appeal No.E/695/03 before the CESTAT, Chennai. Adverting to the rival submissions, and accepting the contentions of the assessee/respondent that they were not heard by the Superintendent, before a direction was issued to pay differential duty of ₹ 1,14,29,086/-, the Tribunal vide o .....

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heard. 24. It is the submission of Mr.A.P.Srinivas, learned senior standing counsel for Central Excise and Service Tax departments that reasonable opportunity had already been given to the respondent/assessee, by the Assistant Commissioner of Central Excise, Pondicherry, by issuing show cause notices and that the assessee has also given opportunity to produce all the evidences intended to rely, in support of the defence, in the adjudication. The assessee was also informed to indicate as to wheth .....

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ing the summary of the reply, and the material on record, the Assistant Commssioner of Central Excise, Cuddalore, vide order in Original No.30/98 dated 22.05.1998 has ordered as hereunder: " On transfer of files consequent on bifurcation of Central Excise division, Pondicherry, a personal hearing was held on 18.2.98 Shri. R.Seshadri, Executive Manager (Accounts) of M/s.Chemplast Sanmar Ltd., appeared before me and submitted a written submission. In which, in additio to their earlier content .....

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r-in-Original in No.30/98 dated 22.05.1998 dropping proceedings under Rule 6(b)(i) of the Central Excise (Valuation) Rules, 1975 and ordered as hereunder: 1. The value is ordered to be arrived at in terms of the Rule 6 b(ii) of the Central Excise (Val) Rules, 1975 and the assessments of RTI2s be finalised in line with the conclusion of this order. 2. Duty if any short paid is ordered to be paid in terms of Rule 9B(5) of the Central Excise Rules 1944 immediately." While doing so, the Assista .....

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ssessee, when adjudication was done. 28. Rule 6 of the Central Excise (Valuation) Rules, 1975 reads as hereunder: 6. If the value of the excisable goods under assessment cannot be determined under rule 4 or rule 5, and - (a) where such goods are sold by the assessee in retail, the value shall be based on the retail price of such goods reduced by such amount as is necessary and reasonable in the opinion of the proper officer to arrive at the price at which the assessee would have sold such goods .....

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actured by the assessee or by any other assessee: Provided that in determining the value under the sub-clause, the proper officer shall make such adjustments as appear to him reasonable, taking into consideration all relevant factors and, in particular, the difference, if any, in the material characteristics of the goods to be assessed and of the comparable goods; (ii) If the value cannot be determined under sub-clause (i), on the cost of production or manufacture including profits, if any, whic .....

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ds in retail, in the manner specified in clause (a) of this rule; (ii) in a case where a related person does not sell the goods but uses or consumes such goods in the production or manufacture of other articles, in the manner specified in clause (b) of this rule; (iii) in a case where a related person sell the goods in the course of wholesale trade to buyers, other than dealers and related persons, and the class to which such buyers belong is known at the time of removal, on the basis of the pri .....

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element on the raw materials used, the Assistant Commissioner of Central Excise, Cuddalore has observed that in case the same is not added so far, it may be added in the value to be arrive at assessable value as cost of the products includes duty as well as other expenses like transportation cost of the same. He has also directed the Superintendent (Tech), Central Excise Division, Cuddalore to quantify the differential duty, if any, and to finalise the RTI2 assessment, and accordingly report co .....

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n 2000 (120) ELT 285 SC, the Commissioner of Central Excise has, passed an order in Appeal No.216/2003 (Pondicherry) dated 12.06.2003, stating that there cannot be any indirect challenge to the order-in-original No.30/1998. 31. On the first issue, as to whether the Jurisdictional Superintendent has to provide an opportunity of hearing, this court deems it fit to consider few decisions on the principles of natural justice. 31.1 In Madhya Pradesh Industries Ltd., v. Union of India reported in AIR .....

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e of natural justice that a quasi judicial tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. Indeed, Rules 55 of the rules, quoted supra, recognizes the said principle and states that no order shall be passed against any applicant unless he has been given an opportunity to make his representations against the comments, if any, received from the State Government or other authority. The said opportunity .....

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e Apex Court, held as follows: Article 217(3) does not guarantee a right of personal hearing. In a proceeding of a judicial nature, the basic rules of natural justice must be followed. The respondent was on that account entitled to make a representation. But it is not necessarily an incident of the rules of natural justice that personal hearing must be given to a party likely to be affected by the order. Except in proceeding in courts a mere denial of opportunity of making an oral representation .....

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inguished from an absolute rule of uniform application-seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the a .....

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s rule of fairplay "must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands." 31.4. In Union of India v. Tulsiram Patel reported in AIR 1985 SC 1416, a Constitutional Bench of the Apex Court considered the scope and extent of applicability of the principles of natural justice to administrative action. The Hon'ble Apex Court observed thus, So far as the audi alteram partem rule is concerned both in England and in India, it is well establis .....

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itude or the urgency of taking action so demands, as pointed out in Maneka Gandhi's case. 32. The direction that has been issued to the Superintendent is only to quantify the differential duty, if any, due to the inclusion duty element on the raw material and finalise RTI2 assessment in terms of Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975. In the light of the directions issued by the adjudicating authority, computation of differential duty on the basis of the cost of denature .....

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herefore opportunity of hearing to all the cases to be given, then, in our considered view, there is no end and it would produce disastrous results of issuing show cause notices by the Superintendents of the Central Excise Department to all the assessees, who submit their returns, hear and determine the value of excisable goods under assessment. In the case on hand, directions have been given by the Adjudicating authority, as to how the valuation and computation of differential duty, if any, has .....

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on valuation of excisable goods under assessment. The adjudicating authority has provided an opportunity of hearing, which we have recorded in the foregoing paragraphs. 34. Legislature in the statutes has used the expression, 'personal hearing', 'opportunity of being heard', or 'consider the representation' etc. Right if any under an Act to be decided, by the competent authority, may or may not, require an opportunity of being heard. It depends upon the nature of the righ .....

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bove discussion and decisions, we are of the considered view that the directions of the Tribunal, to the Jurisdictional Range officer to provide an opportunity of hearing, is not in accordance with the scheme of the Act and the rules framed thereunder, and hence the directions are liable to be set aside and accordingly set aside. 35. The second aspect of the case is whether the directions issued by the Tribunal to the Jurisdictional Superintendent to consider the submission of the assessee, in t .....

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does not indicate, any reference to the above said judgment. As observed earlier, there was no challenge to the order-in-original and therefore, when the appeal was filed against the letter of the Superintendent of Central Excise, Range 1, Cuddalore directing the respondent/assessee to pay the differential duty of ₹ 1,14,29,086/-, the appellate authority has rejected the same, stating that the assessment had attained finality. The Appellate authority has passed the order on 12.06.2013, by .....

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of this section shall apply to such finished excisable goods (hereinafter referred to as the final products), as the Central Government may, by notification in the Official Gazette, specify in this behalf, for the purpose of allowing credit of any duty of excise or the additional duty under Section 3 of the Customs Tariff Act, 1975 (51 of 1975), as may be specified in the said notification (hereinafter referred to as the specified duty) paid on the goods used in or in relation to the manufactur .....

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ernment may specify the goods or classes of goods in respect of which the credit of specified duty may be restricted." Rule 57C states that no credit of duty paid on a final product may be allowed if the final product is exempt from the whole of the excise duty leviable thereon or is chargeable to a nil rate of duty. Rule 57D says that the credit of duty allowed in respect of any inputs shall not be denied or varied on the ground that part of the inputs is contained in any waste, refuse, or .....

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cturer availing of the credit. Rule 57F(1) reads thus : The inputs in respect of which a credit of duty has been allowed under rule 57A - (i) may be used in, or in relation to, the manufacture of final products for which such inputs have been brought into the factory; or (ii) shall be removed, after intimating the Assistant Commissioner of Central Excise having jurisdiction over factory and obtaining a dated acknowledgement of the same from the factory for home consumption or for export under bo .....

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in an acknowledgment thereof. The manufacturer, having filed the declaration and obtained the acknowledgement, can take credit for the duty on the inputs received by him. Rule 57I provides for the recovery of credit wrongly availed of or utilised in an irregular manner. The manufacturer is then required to show cause why he should not be disallowed such credit, or, if it has utilised it, why its value should not be recovered from him. After considering the reply, the concerned excise officer is .....

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a reversal of the credit by the excise authorities except where it has been illegally or irregularly taken, in which event it stands cancelled or, if utilised, has to be paid for. We are here really concerned with credit that has been validly taken, and its benefit is available to the manufacturer without any limitation in time or otherwise unless the manufacturer itself chooses not to use the raw material in its excisable product. The credit is, therefore, indefeasible. It should also be noted .....

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VAT scheme was as good as tax paid. 19. With this in mind, we must now determine whether the excise duty paid on the raw material should form part of the cost of the excisable product for the purposes of Section 4(1)(b) of the Act read with Rule 6 of the Valuation Rules? ............. ............. 24. We think it is appropriate that the cost of the excisable product for the purposes of assessment of excise duty under Section 4(1)(b) of the Act read with Rule 6 of the Valuation Rules should be r .....

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tue of the MODVAT scheme, I have become entitled to the credit of ₹ 10/- with the excise authorities and can utilise this credit when I pay excise duty on my finished product. The real cost of the raw material (exclusive of freight, insurance and the like) to me is, therefore, ₹ 90/-. In reckoning the cost of the final product I would include ₹ 90/- on this account. This, in real terms, is the cost of the raw material (exclusive of freight, insurance and the like) and it is thi .....

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ction 4(1)(b) of the Act read with Rule 6 of the Valuation Rules the excise duty paid on raw material also covered by the MODVAT scheme is not to be included. At paragraph 24, the Hon'ble Apex Court has ordered, as to how the real cost of the raw material (exclusive of freight, insurance and the like) should be reckoned, for which, Their Lordships have taken guidance notes of the Indian Chartered Accountants. Dai Ichi Karkaria has been rendered on 11.08.1999. 37. Perusal of the order in Appe .....

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er passed in the rectification petition shows that the Commissioner of Central Excise, Large Taxpayer Unit, Chennai, the appellant herein has also admitted that the issue on merits has been settled in favour of the Tax Payer, by the Hon'ble Apex Court, in Collector of Central Excise, Pune vs. Dai Ichi Karkaria Ltd reported in 1999 (112) ELT 353 SC and the only issue according to the appellant before the Tribunal to be considered was on technical grounds stating that, the action of the Superi .....

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esh, and the Range Superintendent is free to consider all the submission and pass orders in accordance with law. As stated supra, decision of the Hon'ble Supreme Court dated 11.08.1999 was not placed before the appellate authority and considered. Had it been placed before the Commissioner of Central Excise, Cuddalore, it would have been considered and appropriate orders would have been passed, though the assessment order had reached finality. Directions to compute the differential duty, in t .....

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the jurisdictional officer is under no obligation in law to provide an opportunity of hearing to the assessee. He is required to only compute the value and the differential duty, as per the rule and decision of the Hon'ble Apex Court. 39. Civil miscellaneous appeal has been admitted on 09.04.2012, on the substantial questions of law, extracted supra. On the first substantial question of law, we are of the view that the directions of the Tribunal is only to consider the submissions of the res .....

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rived at by the Superintendent, should be in accordance with the judgment of the Apex Court, and Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975 and in such circumstances, the Tribunal is right in remanding the matter, to the limited extent. Substantial question of law No.1 is answered as indicated. 40. On the second substantial question of law, as to whether the Hon'ble Tribunal, while passing Miscellaneous Order 371/2011 dated 25.7.2011, was correct in dismissing the department .....

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, which the Tribunal is bound to take note of and pass suitable orders and the same has been done in this case. Therefore, the Tribunal cannot be said to have committed an error. In the light of the discussion on the applicability of the judgment of the Hon'ble Apex Court, to the facts on hand, and the answer to substantial question of law No.1 as indicated, substantial question of law No.2 is answered, in the negative, against the Revenue. 41. On the third substantial question of law is Whe .....

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rson aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Principal Commissioner of Central Excise or Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented .....

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of the appeal. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.' 42. Adverting to the above question, it is required to consider the letter, dated 20/11/98 of the Range Jurisdictional Superintendent and, it is extracted hereunder: OFFICE OF THE SUPERINTENDENT OF CENTRAL EXCISE, RANGE-I, CUDDALORE O.C.No.1251/98 20/11/98 To M/s CHEMPLAST SANMAR LTD., KADAMPULIYUR PANRUTI. Gentlemen, Sub: CEX - Valuation - M/s.Chemplast Sanmar .....

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d in terms of Rule 9B(5) of Central Excise Rules, 1944. Further, as per details available in the findings and discussions, in working out the cost if duty element on the inputs used is not included, the same should be included for the purpose of arriving at the cost. In the light of the above, the cost of the Denatured Ethyl Alcohol has been worked out for the financial years 1994-95, 1995-96, 1996-97 & 1997-98 which includes the input duty paid. A comparative chart of the assessable value a .....

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or the purpose of payment of Central Excise duty while clearing the DNS was more than the Actual cost which includes the duty paid on the inputs and as such no differential duty is payable by yourself for those years, for the reasons stated in the Worksheet III (enclosed). As regard 1997-98, the actual cost which includes input duty paid works out to ₹ 14286.61 per KL as against the Declared cost of ₹ 9656 per KL of DNS, and therefore you are required to pay the differential duty of .....

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tance to this office. The copies of Worksheets I, II & III are enclosed herewith for reference and necessary action. Yours faithfully, (R.DHANDAPANI.) Encl : As above SUPERINTENDENT OF CENTRAL EXCISE, RANGE-I, CUDDALORE. Copy Submitted to The Assistant Commissioner, Central Excise Division, Cuddalore. (with enclosures) W.R.T.C.No.V/RI Cud/17/20/97 VC dated 22/5/98 Order-in-Original No.38/98. 43. The Range Jurisdictional Superintendent has valued the excisable goods, under assessment and arri .....

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this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order.' 45. Adjudicating authority as per section 2(a) of the Central Excise Act, 1944, is (a) "adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), Commissioner of Centra .....

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Central Excise, Assistant Commissioner of Central Excise or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) with any of the powers of a Central Excise Officer under this Act." 47. In the case on hand, it is the decision of the Range Jurisdictional Superintendent, in arriving at the value of the excisable g .....

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