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2015 (9) TMI 1474 - CESTAT MUMBAI

2015 (9) TMI 1474 - CESTAT MUMBAI - TMI - Valuation - inclusion of selling cost, marketing cost, administrative expenses and advertisement expenses in the value adopted for cost of production - appellant referred to the provisons of CAS-4 which has been accepted by the Revenue - Demand of differential duty and imposition of penalty - utilization of CENVAT Credit in case of excisable semi-finished goods - condition is revenue neutral and the assessee has paid the amount demanded prior to show-cau .....

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er Notification No. 6/2000 dated 1.3.2000 - whether valuation had to be in accordance with Rule 8 of the Valuation Rules, 2000 - duty paid under protest - Demand of differential duty and imposition of penalty - Held that:- the whole issue is interpretational and the matter can be considered in view of the similar earlier decisions of the Tribunal and the Hon'ble Supreme Court in the case of Commissioner of Central Excise Vs. Cadbury India Ltd. [2006 (8) TMI 2 - SUPREME COURT OF INDIA]. The penal .....

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P India Ltd., is a manufacturer of tyre and is in appeal against Order-in-Original No. 02/Commr/Goa/CX/2007 dated 27.2.2007 passed by the Commissioner of Central Excise & Customs, Goa, wherein for the period July, 2000 to December, 2000, a dispute was arose vide show-cause notice dated 22.5.2001 stating therein that the appellant is determining value of the products (Butyl & Bladder) by adding only 4.44% profit to the cost of production, as per the price declaration filed under Rule 173C .....

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,45,022/- along with interest and penalty. Another show-cause notice dated 26.7.2001 was also issued stating therein that the appellant is manufacturing Rubberized Tyre Cord Warp Sheet, which is captively consumed in the manufacture of tyres. It further appeared that the said goods captively consumed in the manufacture of ADV tyre is not entitled for exemption under Notification No. 67/95-CX dated 16.3.1995, as amended, since ADB tyres are cleared at Nil rate of duty under Notification No. 6/200 .....

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ng with interest and penalty be not imposed. 2. This is the second round of litigation. In the earlier round, pursuant to confirmation of show-cause notice, the appellant preferred appeal before this Tribunal and this Tribunal by a common order in Appeal No. E/2652 & 2653/02 vide Final Order No. A/ 111-1112/WZB/2006/C-III/EB dated 19.12.2005 observed that there is a dispute of duty demand where the consumption is for production of ADV tyres and in other case where the excisable tyre was manu .....

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to whether the appellant is manufacturer of excisable final products, learned Commissioner has taken notice of the contention of the appellant in para 22 of the order i.e. the appellants have submitted, as on the date of show-cause notice, the final figures worked out was not available as the same would be available only on finalization of the account in month of October and accordingly, the whole issue is premature and the payment of duty should be treated as provisional, as the assessee is cle .....

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ed penalty of ₹ 10 lakhs under Rule 173Q of Central Excise Rules, 1944 read with Section 4(1)(b) of the Act read with Section 173C of the Central Excise Act, 1 944. 2.2 In the other matter relating to manufacture of ADV tyres, the contention of the appellant was taken notice of being that the subject goods were in the process material, made of required specifications for use in the manufacture of ADV Tyres and had short shelf life, it is not marketable. The differential duty as worked out .....

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sioner was pleased to reconfirm the differential duty of Rs,2,97,633/- along with interest and further imposed penalty of ₹ 75,000/- under Rule 173Q read with Rule 210 of the Central Excise Rules, 1944 for contravention of Rule 173B, Rule 52A read with Rule 173G(2), Rule 53A read with Rule 173G(4), Rule 54 read with Rule 173G(4) of the Central Excise Rules, 1944 and Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. 3. Being aggrieved, the appel .....

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ring expenses + marketing expenses and thereafter added profit margin @ 8.4% and contingency 4% which worked out to ₹ 135.11 per kg. According to the learned Counsel for the appellant, as on 1.7.2000 in view of the new Valuation Rules, the factory cost comes to ₹ 97.09, internal expenses 4.86% + 4% contingency. The basic cost worked out to ₹ 88.21 in which 15% profit margin is added and the total cost worked out is ₹ 135.11. Accordingly, it shows that the Revenue has proc .....

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r similar facts and circumstances, the goods were captively consumed in manufacture of final products for the period prior to July, 2001. The Hon'ble Supreme Court taking notice of the fact that this Tribunal in the case of BMF Beltings Ltd. Vs. Commissioner of Central Excise - 2005 (184(ELT 158 (Tri-Bang), wherein the Tribunal has directed the Revenue for the period 1995 to 2000 to apply CAS-4 for determination of the cost of production of the captively consumed goods. Similarly, in the cas .....

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