TMI Blog2016 (9) TMI 1175X X X X Extracts X X X X X X X X Extracts X X X X ..... l is relevant and, hence, annual costing is not tenable, is unsustainable. The fact remains that while the duty liability has to be discharged at the time of removal of excisable goods in a situation where there is no sale transaction and known value, the deemed transaction value has to be constructed based on costing method which necessarily will involve an averaging of cost for a period, considering all the parameters. It is neither the case of the appellant nor there is such an approved standard for arriving at cost of excisable goods for each individual clearance. When at the time of each clearance of excisable goods for captive consumption the exact transaction value could not be arrived at the relevant time the duty has to be paid on a provisional basis and upon arriving at the costing applying CAS-4 and the assessable value in terms of Rule 8 of Valuation Rules final determination of duty liability has to be made. In the present case, admittedly no provisional assessment was resorted to by the appellant. Hence, the determination of actual cost much later on the clearance resulted in certain adjustments and payments by the appellant. Para 8 of guidelines issued by the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hly statutory returns with duty payment details have been filed. The existence of more than one cost certificates during different months in one financial year is apparently in the knowledge of the Department. Hence, the question of time bar requires closer scrutiny. Since we intend to remand the case to the Original Authority on the quantification of duty demand, this aspect also has to considered by the Original Authority for a clear finding. - Appeal partly allowed by way of remand - Excise Appeal No. 58701 of 2013 - Final Order No. 53790/2016 - Dated:- 27-9-2016 - Dr. Satish Chandra, President And Shri B. Ravichandran, Member (Technical) Shri Vipin Kumar Jain, Advocate for the appellant Shri R.K. Manjhi, Authorized Representative (DR) for the respondent ORDER Per. B. Ravichandran The appeal is against order dated 31/3/2013 of Commissioner of Central Excise, Raipur. The appellants are engaged in the manufacture of Iron Ore Concentrate liable to Central Excise duty. The Iron Ore Concentrate is cleared to sister unit situated at Visakhapatnam on payment of Central Excise duty. The Visakhapatnam unit uses the said concentrate for further manufacture of exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 30/10/1996 is not at all relevant. The said circular dealt with addition of previous year s profit margin to arrive at valuation in terms of erstwhile Valuation Rules. The said circular does not prescribe adoption of current year s profit margin for valuation which is in line with Hon ble Supreme Court s decision in Purolator case (supra). (d) cost of production of goods can be determined at any given point of time, and does not have to wait till end of the financial year. Depreciation etc. are allocable on a pro-rata basis. (e) NDMC pricing policy determines cost of iron ore fines and slimes. The revision of costing of iron ore concentrate is necessitated due to these revisions by NDMC. Every time there was a revision, the appellant intimated the department about the revised cost alongwith CAS-4 certificate. (f) even if the Revenue intends to adopt average cost method, the demand cannot be made on selective basis, ignoring the months when there were actually excess payments. If the value has to be determined on annual cost calculation the duty payments for the whole period have to be considered for correct quantification. (g) the demand is clearly time barred. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and known value, the deemed transaction value has to be constructed based on costing method which necessarily will involve an averaging of cost for a period, considering all the parameters. It is neither the case of the appellant nor there is such an approved standard for arriving at cost of excisable goods for each individual clearance. 7. Now, the question remains when at the time of each clearance of excisable goods for captive consumption the exact transaction value could not be arrived at the relevant time the duty has to be paid on a provisional basis and upon arriving at the costing applying CAS-4 and the assessable value in terms of Rule 8 of Valuation Rules final determination of duty liability has to be made. In the present case, admittedly no provisional assessment was resorted to by the appellant. Hence, the determination of actual cost much later on the clearance resulted in certain adjustments and payments by the appellant. 8. The appellants referred to guidelines issued by the Institute of Cost Works Accountants of India on CAS-4. We have perused the same. Para 8 deals with periodicity of CAS-4 Certificates. The guidelines states that the frequency of rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod has to be adjusted. The question of unjust enrichment has no relevance here. There is no refund considered here. The point that the duty paid in excess in certain months has been availed as credit by sister unit hence, cannot be adjusted towards short payment also not tenable. The demand arose based on annual costing. Such cost price in terms of Rule 8 will apply to all clearances made during the relevant year. Admittedly, duty already discharged has to considered for arriving at overall short payment. Selectively applying the said cost price only for months when the clearances were below such cost price is not legally sustainable. 11. Further, the finding of the lower Authority against adjustment of ₹ 16,07,19,858/-, towards differential duty is not clear. Admittedly, the said amount is paid due to upward revision of costs. The months covered are also the months for which short payment of duty was confirmed. Hence, it is not clear why such payment could not be adjusted against total duty liability. 12. We find the Original Authority has not fully examined the issue of time bar raised by the appellant. Intimations of price revision followed by CAS-4 Certificates ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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