TMI Blog2017 (8) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... fter 2000, the adoption of a more scientific and transparent method of costing would indeed do no harm to either parties since the said standard greatly reduces the scope for dispute - in respect of disputes on valuation of captive consumption goods, which have been pending even after 2000, the adoption of a more scientific and transparent method of costing would indeed do no harm to either parties since the said standard greatly reduces the scope for dispute. On the peculiar facts of this case and taking note of the circumstances by which the appellant paid excess duty on three products which all revolves around the application of CAS-4 cost construction method which was under much dispute and confusion during the relevant period, we are of the view that the plea of the appellant for adjustment of the excess paid duty towards the demand requires to be allowed. Penalty - Held that: - there can be no allegation of suppression of facts, fraud or collusion that could be held against the assessee, especially considering that they are seeking resolution of the dispute by adoption of CAS-4 costing introduced by the department in 2003 - imposition of penalty of ₹ 20 lakhs impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of clearance of goods was higher than the cost in respect of products Cymbush, Simper, Gramaxone and Kunfu. However, for the product Karate original authority found lower assessable values were adopted and confirmed duty liability of ₹ 1,57,49,271/- for the period 1.4.1996 to 31.3.2000 and ₹ 31,07,595/- for the period 01.04.2000 to 30.06.2000 along with interest thereon and also imposed penalty of ₹ 20 lakhs under Rule 173Q of erstwhile Central Excise Rules, 1944. In appeal, Commissioner (Appeals) vide impugned order dt. 16.04.2007 upheld the order of original authority. Hence assessee is before this forum in Appeal E/629/2007. 2. Department has also filed appeal [E/529/2007] seeking to set aside the impugned order dt. 16.04.2007 passed by Commissioner (Appeals) to the extent that it relates to the observation that CAS-4 is applicable to all pending matters. 3. On 31.07.2017, when the matter came up for hearing, assessee was represented by Shri S.S. Gupta, Ld. Consultant who reiterated the grounds of appeal and also made oral submissions which can be summarized as under : (i) The issue pertains to the period 1.4.1996 to 30.06.2000 on valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertainty about the classification of the impugned goods themselves. Secondly, as per the ratio of the Tribunal decision in National Aluminum Co. (supra) which has been confirmed by the Supreme Court there is no bar to seek determination of assessable value under the later CAS-4 circular dt.13.02.2003. (ix) With regard to Appeal No.E/529/2007 filed by department, the ld. Consultant submits that department is aggrieved by the reliance of Commissioner (Appeals) on the decision in National Aluminium Co. Ltd. Vs Commissioner - 2005 (184) ELT 183 (Tri.-Del.), on the ground that appeal has been filed by department before the Hon ble Supreme Court. Ld. Consultant points out that the said appeal having been dismissed by the Hon ble Apex Court [reported in Commissioner Vs Hindustan Zinc Ltd. - 2016 (335) ELT A27 (SC)], hence the stand of the department is not sustainable. 2. On the other hand, on behalf of Revenue, Ld. A.R Shri Cletus supports that part of the adjudication order dismissing the appeal filed by assessee. He further submits that the discrepancy in the manner of arriving at the assessable value came to light only after cost audit report initiated by department and repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excisable goods used for captive consumption. (iii) The standard and its disclosure requirement will provide better transparency in the valuation of excisable goods use for captive consumption. 6.3 Admittedly, the overhaul of the Section 4 of the Central Excise Act and that of the Valuation Rules was effected in 2000 as a response to the large number of disputes that had been festering in respect of valuation of final products and valuation of captive consumption of goods etc. The Board s circular dt. 13.2.2003 has issued the advisory to follow CAS-4 standards for determining the assessable value in respect of captive consumption goods. Ostensibly, this has been done with an intent to ensure that cost is determined in line with universally acceptable standards of costing expressing CAS-4 standards. In such a situation, in respect of disputes on valuation of captive consumption goods, which have been pending even after 2000, the adoption of a more scientific and transparent method of costing would indeed do no harm to either parties since the said standard greatly reduces the scope for dispute. This is precisely the ratio laid down by the Tribunal in the NALCO case referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned clearances. On the other hand, appellants had indeed discharged duty liability on the clearances, which however have been disputed by the department as having been incompletely discharged. In such a situation, there can be no allegation of suppression of facts, fraud or collusion that could be held against the assessee, especially considering that they are seeking resolution of the dispute by adoption of CAS-4 costing introduced by the department in 2003. We therefore hold that imposition of penalty of ₹ 20 lakhs imposed under Rule 173Q (1) of the CER 1944 cannot then sustain and will have to be set aside, which we hereby do. 6.7 In the event, Appeal No.E/629/2007 of the assessee is partly allowed by way of setting aside the penalties and imposed partly by way of remanding the matter for de novo adjudication in the light of the directions contained in para 6.6 above. Appeal No.E/529/2007 is dismissed. 6.8 In respect of Appeal E/529/2007 filed by the department in view of the dismissal of appeal by the Hon ble Apex Court in the case of Commissioner Vs Hindustan Zinc Ltd.reported in 2016 (335) ELT A27 (SC), the grounds of appeal will no more have any legs to sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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