TMI Blog2017 (8) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner to file appeal against such finalization of pricelist before the Jurisdictional Commissioner (Appeals). In the present case the pricelist were admittedly filed by the appellant. The Divisional Assistant Commissioner did not finalize them. Therefore, the Commissioner had no jurisdiction to call upon the assessee for adoption of any other prices, till such time, assessable value through said pricelist was finalized by the Divisional Assistant Commissioner. So far as undervaluation charges are concerned, the Jurisdictional Commissioner did not have jurisdiction to demand duty till such time the pricelists were finalized and if aggrieved appeal was not filed before Commissioner (Appeals) and such appeal was not decided by Commissioner (Appeals). The ruling by Hon’ble Supreme Court in the case of Commissioner of Central Excise, Meerut-I v. R.A. Castings Pvt. Ltd. [2010 (9) TMI 669 - ALLAHABAD HIGH COURT], is squarely applicable in the present case wherein it was ruled that on the basis of consumption of energy required for manufacture of unit quantity of goods quantum of manufacture of goods cannot be arrived at and such conclusion of manufacture shall be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period from 5-8-1993 to February, 1994 for the value of ₹ 28,95,71,442/- should not be demanded under Section 11A of Central Excise Act, 1944, Central Excise duty of ₹ 1,00,35,326/- on the clearances of S.S. Flats in the guise of O.A.S. Flats during the period from March, 1994 to July, 1994 for the differential value of ₹ 6,69,02,166/- should not be demanded under Section 11A of Central Excise Act, 1944, Central Excise duty of ₹ 4,80,765/- on the clearances of S.S. Rounds during the period from March, 1994 to June, 1995 for the differential value of ₹ 32,05,100/- should not be demanded under Section 11A of Central Excise Act, 1944, Central Excise duty of ₹ 15,99,61,757/- on the clearances of Bars and Rods, M.S.-RIL and Waste Scrap during the period from April, 1994 to September, 1996 for the total value of ₹ 1,06,64,11,719/- should not be demanded under Section 11A of Central Excise Act, 1944 and why interest on said amounts of Central Excise duty should not be demanded. There was a proposal for imposition of penalty on M/s. Rathi Udyog Limited, Shri Pradeep Rathi, Director, Shri M.L. Agarwal, Ex-President, Shri P.C. Rathi, Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven for provisional assessment under Rule 9B of Central Excise Rules, 1944. The Range Superintendent had made endorsement of provisional approval on the back of RT-12 return. When the Assistant Commissioner had not ordered provisional assessment under Rule 9B such a remark by Superintendent was not as per law. The right course of action was to first decide the pricelists and if the assessee had collected more consideration than declaration of consideration in the pricelist then there was reason for demand of duty within the normal period of limitation. Had there been any misdeclaration in pricelists filed then there was a case for invocation of extended period. The Original Authority did not appreciate the submissions made before him and decided the matter through Order-in-Original No. 40/Commr./M-I/1997, dated 28-11-1997 and confirmed the demand of ₹ 23,70,56,484/-. Aggrieved by the said order appellant preferred appeal before this Tribunal. This Tribunal passed Final Order Nos. 1186-1189/99-A, dated 18-8-1999 in Appeal No. E/48/98-A, E/263/98-A, 264/98-A E/515/98-A [2000 (123) E.L.T. 880 (Tribunal)] and remanded matter for de novo consideration. While remanding the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the show cause notice was issued on 31-12-1996 and demand was raised for period from April, 1994 on allegation of undervaluation and when the pricelist submitted under Rule 173C of Central Excise Rules, 1944, was pending finalization before the Divisional Assistant Commissioner. In respect of demand of ₹ 15,99,61,757/- he contended that the said demand is on the basis of consumption of gas for manufacture of goods. Revenue has worked out that 56.66 Cubic Meter Per Ton as the consumption of gas and such a figure of computation is presumptive and that even if it is presumed that the alleged quantity of goods were manufactured, Revenue has not produced any evidence to establish as to from where the raw material for such manufacture was procured and to whom such goods were sold and who were the buyers and transporters, etc. The statements on the basis of which allegations made were subsequently retracted immediately after the witnesses came out of the control of Central Excise Officers and once again during cross-examination before Adjudicating Authority. He has further contended that on the basis of similar presumption that is on the basis of electricity consumption presu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the impugned order shows that even then the Department had no case. The chemical examiner had reported the contents of chromium more than 10.5% (para 8.8.3 of Order-in-Original) whereas in terms of Note 1(e) of Chapter 72 for treating any goods as SSI Exemption of carbon was also one of the criteria. 8. It is contended that there being no mention about the carbon contents in test report, the same could not be relied upon for deciding the classification at the end of RIL. 9. It was also contended that in the entire case of Department, it was not brought on record that the so called wrong classification on the part of RIL was with the connivance or in the knowledge of RUL. 10. It has also been contended by the appellant that even otherwise the so called misclassification and/or undervaluation was on the part of RIL as whatever goods were received by RUL were converted into flats and were returned to RIL. RUL received excisable goods on payment of duty of which credit was taken at their end and while returning the goods to RIL, RUL was required to pay differential duty. Therefore, if at all some duty was to be paid at the end of RIL, credit of the same was available to RUL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Original Authority and supported the Order-in-Original. 16. We have taken the rival contentions into consideration. During the relevant period the provisions of assessment were that the assessee was required to file classification list under Rule 173B of Central Excise Rules, 1944, pricelist under Rule 173C of Central Excise Rules, 1944 before the Jurisdictional Assistant Commissioner. It was the duty of the Assistant Commissioner to decide classification of goods on the basis of classification list and assessable value on the basis of pricelist. Decision on pricelist was for arriving at assessable value by the Assistant Commissioner and such decision was treated as adjudication and on such finalization of value, if the Jurisdictional Commissioner disagreed then he was required to review such approved pricelist and give direction to the Divisional Assistant Commissioner to file appeal against such finalization of pricelist before the Jurisdictional Commissioner (Appeals). In the present case the pricelist were admittedly filed by the appellant. The Divisional Assistant Commissioner did not finalize them. Therefore, the Commissioner had no jurisdiction to call upon the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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