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2016 (9) TMI 936

of the goods supplied by the appellants is to be determined under Rule 10A of the Central Excise Valuation Rules, 2000 and not under Rule 6. - The identical issue involved in these appeals has already been analysed at length in the various judgments of Tribunal upholding the stand of the department, and in fact the Tribunal view has also been sustained by the Hon'ble High Court of Bombay in in Hyva India Vs Union of India [2015 (5) TMI 25 - BOMBAY HIGH COURT]. This being the case, notwithstanding the Learned Advocate's valiant, but vain, efforts to convince us that the judgments are per incuriam and his other arguments that valuation rules has to be read with charging section, his reference to Committee set up by CBEC and report thereof on provisions for job work valuation etc., judicial discipline and judicial propriety requires us to follow and apply the ratio of the judgments cited supra especially when it is not the case of appellant that the same has not been stayed or overturned by higher courts. - Decided against the appellant - E/777 & 778/2008, 624 & 625/2009 - Final Order No. A/30643 to 30646/2016 - 8-8-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) and Sh. Madhu M .....

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also imposed equivalent penalty and demanded interest at the applicable rate. The authority also imposed penalty on MIL. (x) Hence appeals E/777/2008 and E/778/2008. (xi) The appellants were issued with another show cause notice dated 25.11.2008 demanding differential duty of ₹ 4,63,05,014/- on the differential value of ₹ 34,11,05,546/- for the period from November, 2007 to September, 2008 on the ground that they were acting as job worker for MNAL and was therefore required to pay duty in terms of Rule IOA of the Central Excise Valuation Rules, 2000. (xii) Order-in-Original dated 31.03.2009 / 01.04.2009 confirmed the demands as proposed in the show cause notice, also imposed equivalent penalty and demanded interest at the applicable rate. (xiii) Hence appeals E/625/2009 and E/624/2009. 3. At the outset, Learned Advocate Sh. Karan Talwar appearing for the appellant fairly conceded that the issue involved in the case has been decided against the appellant and in favour of department by the Tribunal. However, the Learned Advocate proceeded to submit that these decisions are per incuriam as the Tribunal had not considered the Apex Court judgments relied upon by the appellan .....

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particular month, instead of adopting the actual sale price. Since the same is contrary to the principle provided under Rule IOA (ii) of the Valuation Rules, the Appellant submits that the value has to be re-determined in terms of Rule IOA (ii) of the Valuation Rules. (g) Benefit of cum duty should be granted to them. (h) The ingredients required to be present in a case to impose penalty under rule 25 of the Central Excise rules, 2002 is not present in the instant case. Therefore the impugned order imposing penalty under Rule 25 of the Central Excise rules, 2002 is incorrect and liable to be set aside. Hence interest under Section 11 AB is also not payable by them. 4. On behalf of the department, the Learned AR Sh. R.K. Dass vigorously opposed the appeals. He stated that the matter is no longer res integra and has been settled in favour of the department in a number of Tribunal judgments. He also placed reliance on Board's Circular 902/22/2009-CX dated 20.10.2009. 5. Heard both sides and have gone through the facts, evidence and judgments placed before us. 6. We find it for a fact that identical matter has been agitated in the Tribunal, which have decided the issue against the .....

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on behalf of was not in respect of interpretation of Rule 10A which was not in fact in existence at that time. We, therefore, find that these decisions are distinguishable from the present case. 16. The ld. Sr. Advocate also relied on the Patna High Court s decision in the case of Tata Engineering & Locomotive Company Ltd. which was in respect of body builders. We find that the decision of the Hon ble Patna High Court was in respect of show cause notice issued by the Excise Department demanding duty from Tata Engineering & Locomotive Co. Ltd. and not from the body builders, whereas, in the present case the duty has been demanded from the appellants and not from Tata Motors. Moreover, when the decision was passed Rule 10A was not in existence. Therefore, we are of the view that the ratio of the said decision is not applicable to the present case. 17. The appellants also relied on the decision of the Tribunal in the case of CCE v. M/s. Innocorp Ltd. mainly on the ground the said decision was in respect of the interpretation of Rule 10A and the Tribunal had taken a view that for applicability of Rule 10A the definition should satisfy three requirements viz. (i) he s .....

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nd in the given facts and circumstances can urge that they have not manufactured the goods on behalf of another person or that their relationship with M/s. Tata Motors Limited is on principal to principal basis. The argument on relationship can be advanced in future cases by the petitioners irrespective of the conclusions that we have reached on the legality and validity of Rule 10A. Insofar as order dated 30th November, 2012 passed by the Tribunal is concerned, that clearly proceeds on the applicability of Rule 10A to the transactions and dealings noted therein. Therefore, it would be open for the petitioner to urge in other and future cases that the relationship being not covered by Rule 10A it has no applicability. In other words, they can urge that Rule 10A cannot be invoked or has been erroneously and incorrectly invoked and applied to a given transaction and case. All such contentions and based on the judgments which have been relied upon by Mr. Sridharan can be canvassed. We, therefore, need not express any opinion as to when Rule 10A could be said to be applicable. 64. Similarly, we do not wish to render a conclusive opinion as to what could be the situation in which i .....

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