TMI Blog2017 (1) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... rocured by the foundries - appeal allowed by way of remand. - E/119/2007 - A/94597/16/EB - Dated:- 19-12-2016 - Shri M V Ravindran, Member (Judicial) And Shri C J Mathew, Member (Technical) Shri Gajendra Jain, Advocate for the appellant Shri Ashuthosh Nath, Asstt. Commissioner (AR) for the respondent ORDER Per C J Mathew At the core of the dispute arising from order-in-original no. 24/CEX/2006 dated 30th November 2006 of Commissioner of Central Excise, Pune I is the valuation of scrap cleared by the appellant, M/s Tata Motors Limited, to its own foundries at Maval and Chinchwad for use in manufacture of castings which are utilised by the appellant. The contention of Central Excise authorities in the notice issued to appellant for demand of differential duty of ₹ 64,57,407/- for the period from January 2003 to December 2005 is that the value of clearances were not in conformity with the trend of prices at which scrap was being procured from market sources by the same foundries. 2. The allegation in the notice leading to impugned order is that the appellant had been clearing scrap at uniform rate of ₹ 7,825/- per metric ton from April 2000 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise, Mumbai [2015 (320) ELT 22 (SC)] and of the Tribunal in Rallis (India) Ltd v. Commissioner of Central Excise, Belapur [2016-VIL-459-CESTAT-MUM-CE] were also cited. 6. Learned Authorized Representative urged us not accept the claim of revenue neutrality in view of the decision of the Hon ble Supreme Court in Star Industries v. Commissioner of Customs (Import), Raigad [2015 (324) ELT 656 (SC)] as well as that of the Tribunal in M/s Automotive Stampings and Assemblies Ltd v. Commissioner of Central Excise, Pune I [2015-TIOL-836-CESTAT-MUM] and the decisions in Commissioner of Central Excise, Vishakhapatnam v. Mehta Co. [2011 (264) ELT 481 (SC)] as well as that in Commissioner of Central Excise v. Kitply Industries Ltd [2011 (267) ELT 289 (SC)]. Learned Authorized Representative drew our attention to the majority view of the Tribunal pronounced in Sharda Ispat Ltd v. Commissioner of Customs [2013 (288) ELT 547 (Tri-Mumbai)] to show that allegation of deliberate intent to evade duty is sustainable when assessee is aware of differing prices. 7. Deluged as we are by the rival contentions on the issue of the transactions being subject to duty and on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be determined under the foregoing rules, the value shall be determined using reasonable means consistent with the principles and general provisions of these rules and sub-section (1) of section 4 of the Act. which is susceptible to any connotation. We note a conspicuous lack of provision in the impugned order. 10. The impugned order contains not a sentence on the computation variance between that of appellant and that in the show cause notice. On the contrary, the confirmation of demand is founded on the alleged failure of noticee to defend the valuation adopted by them, the accolade heaped on the investigators for bringing the alleged evasion to light, the admission of noticee that rule 11 alone is applicable, a general reference to the geographical proximity of Mumbai to Pune which apparently marginalises the transport cost, that the assessee was compelled to periodical revision of the assessable value only after alerts from the department and that the assessee had consistently been distancing itself from its responsibilities. 11. In an adjudication order spanning sixteen and half pages, about one page is devoted to that finding that differential duty arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee have in their defence admitted to the applicability of Rule 11 of the Valuation Rules. This fact also stands admitted by Shri S.K. Das, Deputy Manager of the assessee in his statements dated 09/01/2006 and 30/01/2006 recorded under Section 14 of the Act wherein he admitted that since the value of scrap is realizable value and as the cost of production cannot be determined as per CAS - 4, the principles of Rule 8 cannot be applied, owing to which Rule 11 of the Valuation Rules were applicable. 34. The assessable value of scrap for the purpose of duty was to be determined as per the Valuation Rules, in all cases where the goods are cleared to their own units. However, it is on record that they cleared the scrap to their foundry units at Chinchwad and Maval Under Rule 11 of the Valuation Rules without determining and paying appropriate duty thereon. This fact has been properly brought out by the department wherein the values of scrap as furnished by the assessee themselves were compared. It has been established by the department that the value of the scrap procured from dealers was much higher than the value the assessee applied. They have misleadingly advanced the concep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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