9911796707
TMI Blog2019 (9) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... March 2014; (ii) There was an audit by the Central Excise (Audit Circle IV) calling for documents including Cost Audit (CAS-4) as per page number 61 of the Appeal Memorandum; (iii) The appellant filed all the details vide its letter dated 16.06.2017; (iv) A Show Cause Notice dated 26.04.2018 was issued alleging that the sale value of the finished goods i.e., MS Billets and TMT Bars was lower than the manufacturing cost; (v) The assessee replied to the Show Cause Notice vide its reply dated 12.07.2018, seriously disputing the allegations contained in the Show Cause Notice including non-furnishing of Cost Accountant Standard (CAS-4) certificate, which had already been filed before the audit party; (vi) The Order-in-Original dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the notice of the Revenue only during the audit and that therefore, the reliance placed by the Adjudicating Authority on Section 11A(4) of the Central Excise Act, 1944 is justified. 4.1 In reply, Ld. Advocate for the appellant would submit that the appellant having furnished all the details to the audit team, including the CAS-4 certificate wherein the audit team was aware of the valuation, there was no scope for suppression, fraud, etc., and therefore, the period of limitation of one year alone is available; that in the case on hand, the Show Cause Notice dated 26.04.2018 becomes hopelessly barred by limitation. 4.2 He also submitted that the appellant had approached the Revenue through RTI and obtained details furnished by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 4(1)(a) of the Act, the word "ordinarily‟ does not mean majority of the sales; what it means is that price should not be exceptional. In our considered opinion, the word "ordinarily‟, by no stretch of imagination, can include extra-ordinary or unusual. In the instant cases, as we have already noticed, the assessees sell their cars in the market continuously for a period of five years at a loss price and claims that it had to do only to compete with the other manufacturers of cars and also to penetrate the market. If such sales are taken as sales made in the ordinary course, it would be anathema for the expression "ordinarily sold‟. There could be instances where a manufacturer may sell his goods at a price less th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the purpose of assessment to duty is not the price at which the manufacturer actually sells the goods at his sale depots or the price at which goods are sold by the dealers to the customers, but a fictional price contemplated by the section...." 6.2 Section 4 underwent a change with effect from 01.07.2000 and the amended provision reads as under : "SECTION 4. Valuation of excisable goods for purposes of charging of duty of excise. - (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall - (a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stomer towards donation, which is called as "Dharmada" and the includibility of the same in the transaction value. The Hon'ble Apex Court has held as under : "14. In case of a sale of goods, excise duty is chargeable where price is the sole consideration of a sale on `Transaction value'. `Transaction value' means the price actually paid or payable for the goods and any additional amount the buyer is liable to pay to the assessee or anyone on his behalf in connection with the sale vide Section 4(3)(d) supra. Rule 6 of the Central Excise Valuation (Determination of Price and Excisable Goods), Rules 20006 provides that in case of a sale, the value of such goods shall be deemed to be the transaction value and the amount of money value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le opinion, the ratio in the case of M/s. Fiat India Pvt. Ltd (supra) could not have been blindly applied. The authorities below have to go only by the transaction value which is the valuation as per CAS-4 certificate and hence, the impugned order deserves to be set aside, which I hereby do. 8.2 I find merit in the contentions of the Ld. Advocate for the appellant that the Revenue authorities were aware of the method of valuation adopted by the appellant which was based on the CAS-4 certificate which in fact underwent proper scrutiny by the audit party of the Revenue as early as in 2016-17 and hence, there cannot be any scope to allege suppression, fraud, etc.; therefore, invoking the extended period of limitation in the Show Cause Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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