TMI Blog2019 (4) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... duty or valuation at the place of removal that recourse may be had to Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2002. Any other interpretation would render the provisions of rule 7 of Central Excise Rules, 2002 to be inoperable and superfluous. It is seen from the records that the order of the competent authority for provisional assessment, under rule 7 of Central Excise Rules, 2002, requires that the assessment be finalised at the end of every quarter. The said rule prescribes an outer time limit of six months for such finalisation which may be extended by the competent authority. Should be goods remain unsold beyond such statutory limit, the absence of a transaction value from the depot would bring the impugned goods within the ambit of section 4 (1)(b) of Central Excise Act, 1944 and rule 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2002. Appeal dismissed - decided against Revenue. - Excise Appeal No. 914 of 2010, 915 of 2010 And Excise Cross No. 32 of 2010, 31 of 2010 - A/85747-85748/2019 - Dated:- 16-4-2019 - Mr C J Mathew, Member (Technical) And Ajay Sharma, Member (Judicial) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warehouse or any other place of premises wherein the excisable goods have been permitted to be deposited without payment of duty; and that the adoption of transaction value at any other place is not consistent with the scheme of valuation under Central Excise Act, 1944. It is his contention that the first appellate authority had erred in concluding that the reliance placed by Revenue on certain portions of circular no. F No 354/81/2000 dated 30th June 2000 of Central Board of Excise Customs to the exclusion of paragraph 9 therein was inappropriate. According to him, the error is manifest in allowing the various discounts, offered at the time of sale after clearance from the factory in the face of various decisions to the contrary. He placed reliance on the decision of the Hon ble Supreme Court in Purolator India Ltd v. Commissioner of Central Excise, Delhi-III [2015 (323) ELT 227 (SC)] and in Commissioner of Customs Central Excise, Nagpur v. Ispat Industries Ltd [2015 (324) ELT 670 (SC)] and of the Tribunal in Century Laminating Co Ltd v. Commissioner Central Excise, Meerut-II [2013 (288) ELT 276 (Tri-Del)], in Wearwell Tyres Tubes Industries P Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th instructions and circulars issued by Central Government or Central Board of Excise Customs in exercise of powers conferred by Central Excise Act, 1944. The decision in re Rajasthan Spinning Weaving Mills Ltd to the effect that 9. If one analysis the above table it is clear that if one has to work out the assessable value on comparable goods method under Rule 6(b)(i), there has been, according to the assessee, value addition between lump fabric and graded fabric. . The Commissioner has given discounts but not abatement. The two concepts are different. The concept of abatement arises on account of the condition of the goods cleared at the factory gate which is materially different from the condition of the goods cleared from the Sales Depot. 10. xxx 11. Before concluding, we may state that valuation is not an exact science. Some amount of guess work exists in valuation. Therefore, different methods are prescribed by Valuation Rules. These rules are prescribed in order to find out the actual realization which realization constitutes the basis of assessable value. At the same time one must keep in mind that different met ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 and merely evicts the bar of limitation in adjusting the dues, either way, on finalization of assessment. 6. Section 4 of Central Excise Act, 1944 enacts two mutually exclusive provisions: the first is of acceptance of transaction value that is in accord with description of circumstances therein and the second is to cater to all situations that do not conform. Therefore, an assessment, provisional or final, will have to comply either with section 4 (1) of Central Excise Act, 1944 or with the Rules. This is apparent from the placement of rule 6 and rule 7 of Central Excise Rules, 2002. The various situations envisaged in Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 are independent of each other and mutually exclusive; rule 4 and rule 7 of the Rules apply in entirely different situations. It would appear that the appeal of Revenue is motivated by a less than acceptable appreciation of the scope of the expression place of removal ; place of removal is certainly relevant for acceptance of transaction value but not for the ascertainment of duties . Consequently, the reviewing authority felt compelled to raise this particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of rule 7 of Central Excise Rules, 2002 to be inoperable and superfluous. 9. The respondent was unable to determine the transaction value at the time and place of removal as a sale, that conforms to section 4 (1)(a) of Central Excise Act, 1944 was yet to occur. They did not opt for final assessment. The discounts that were intended to be granted to the buyer at the depot was known at the time and place of removal itself from the factory; however, the identity of the buyer, quantity sold and consideration, being an event of the future, could not be evidenced as invoice value at the time of removal to itself. Hence, the recourse to provisional assessment. Had there been a sale at the time and place of removal, these very discounts would have been eligible for abatement to arrive at the assessable value. There is, therefore, no flaw in the findings of both the lower authorities insofar as the goods sold from the depot are concerned. 10. The impugned order has directed that the goods remaining unsold at the time of finalisation of provisional assessment should continue to retain that status till sale does occur. It is seen from the records ..... X X X X Extracts X X X X X X X X Extracts X X X X
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