TMI Blog2018 (6) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... t-assessee. - Excise Appeal No. 50287 of 2017 - A/51958/2018-EX[DB] - Dated:- 18-5-2018 - Mr. Justice (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Shri Hemant Bajaj Shri Anurag Kapur, Advocates for the Appellants Shri R K Mishra, AR for the Respondent Per: Justice (Dr.) Satish Chandra: The present appeal is filed by the appellant against the Order-in-Original No. 55-56/ PR.COMMISSIONER /IND/ CEX/2016 dated 31.10.2016. The disputed period is from November 2010 to December, 2015. 2. Brief facts of the case are that the appellant is engaged in the manufacture of motor vehicles for transportation of goods, body of motor vehicle which attract Central Excise duty as per Central Excise Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared. The basis of valuation is also required to be done in terms of Rule 8 of the Central Excise Valuation Rules, 2000 following the Cost Accountant Standards (CAS-4). It is not in dispute that valuation has been done properly as per CAS-4. However, such valuation has been done on the basis of CAS-4 certificate prepared on the basis of annual cost of production. The appellant has paid duty on a month to month basis on the basis of the cost of the goods for the previous month. When the valuation is finalised on an annual basis, there has been short payment of duty in some months as well as excess payment in other months. The appellant has already paid the excess duty wherever the value as per CAS-4 is more than the value adopted for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be discharged at the time of removal of goods when the invoices are prepared. The legal position as submitted by the appellant cannot be contested. However, it is an admitted fact that the appellants themselves did not follow costing to arrive at deemed transaction value for each clearance. They have considered a period of many months and worked out the costing, in terms of CAS-4 for that period and paid duty. Thereafter, they revised said costing when there are changes in raw material cost. That being the case, we find that the reliance placed by the appellant on the principle that time of removal is relevant and, hence, annual costing is not tenable, is unsustainable. The fact remains that while the duty liability has to be discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nses. It further notes that where goods are cleared on cost of production worked out as per the audited accounts of the previous audited period, it is advisable to prepare a fresh certificate of cost of production based on the audited accounts of the period for which the goods are cleared and the differential duty is paid or taken credit of as the case may be. In such circumstances, it is advisable to compute the actual material cost as per the issue valuation adopted by the assessee for material issues. Further, in the FAQ on CAS-4 the ICAI clarified that cost determination of a product is always for a period and computed on the basis of actual accounts of the company. The costs so determined should be actual cost reconciled with the audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be 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. 9. Similar views have been expressed in the case of Jindal Steel Power (supra). By following the decisions of the Tribunal cited a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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