TMI Blog2021 (11) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, therefore, valuation of job work goods cannot be done under Rule 8. Whether there is suppression of fact with malafide intention for non-payment/short-payment of duty? - revenue neutrality - HELD THAT:- The appellant have been paying the excise duty. The only lapse is that the appellant have not revised the price after 2006, however on pointing out by the audit they have paid the duty along with interest. It was also found that the duty so paid/payable by the appellant is undisputedly available as Cenvat Credit to the principal manufacturer M/s. Total Oil India Pvt. Ltd. Therefore, it is a clear case of revenue neutral. In catena of case law including the case laws cited by the learned Counsel, it was held that where there is situation of revenue neutrality the malafide intention cannot be attributed to the assessee. For this reason also, we find that there is no suppression of fact or malafide intention on the part of the appellant. However, the appellant have admittedly paid the duty however the duty paid is not disputed by the appellant. The excise duty payable on the value i.e. cost of manufacture plus job-work charges is correctly payable by the appellant. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for waiver of Show Cause Notice under Section 11A(2B) on 13.08.2010. However, Show Cause Notice dated 18.04.2011 was issued and it was alleged that the appellant has willfully suppressed the facts from the Central Excise Department by not determining the value of excisable goods as per the provisions contained in Rule 8 read with Rule 10A (iii) of the Central Excise (Valuation) Rules, 2000 and thereby demanded the differential duty of ₹ 1,23,00,460/- along with interest and also proposed penalty under Section11AC. The Commissioner vide Order-in-Original No. Belapur/65/Bel-I/R-V/SLM/COMMR/11-12/Bel dated 15.02.2012 has confirmed the demand, demanded the interest and imposed the penalty. Therefore, the present appeal No. E/760/2012 filed by the appellant M/s. Turbhe Chemical Pvt. Ltd. 2. Consequent to the above case, Show Cause Notice No. V/Adj(SCN)15-70/Commr/11-12/Bel/392 dt. 09.09.2011 was issued to the principal manufacturer of job worker M/s. Total Oil India Pvt. Ltd. proposing disallowance of credit taken by TOIL on supplementary invoices of M/s. Turbhe Chemical Pvt. Ltd. in terms of Rule 9(1) (b) of the Cenvat Credit Rules, 2004, on the ground that TCPL has pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the principal manufacturer on payment of duty. He placed reliance on the following judgment: (i) Dymos Lear Automotive India Pvt. Ltd. 2019 (366) ELT 898 (Tri.-Chennai) The said judgment has been approved by the Supreme Court in Commissioner Vs. Dymos Lear Automotive India Pvt. Ltd. -2019 (366) E.L.T. A186 (SC). On this issue he also placed reliance on the following judgments: (i) International Auto Ltd. Vs. Commissioner 2005 (183) E.L.T. 239 (S.C.) (ii) SRF Ltd. 2007 (220) E.L.T. 201 (Tri.-Chennai) (iii) SRF Ltd. V. Commissioner- 2016 (331) E.L.T. A138 (S.C.) He further submits that since the appellant has manufactured goods on job work basis, the duty paid on such intermediate product is available as cenvat credit to the principal manufacturer of M/s. Total Oil India Pvt. Ltd. Therefore even if some short payment of duty is there, it is revenue neutral exercise therefore on this ground also neither suppression of facts can be attributed nor the demand is sustainable. He placed reliance in the following judgements: (i) SRF Ltd. 2007 (220) ELT 201 (Tri.-Chennai) (ii) Coca Cola 2007(213) ELT 490 (SC) (iii) International Auto Ltd. Vs. Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndation Jt. Venture 2008 (216) ELT 177 (S.C.) (iii) Deccan Enterprises Pvt. Ltd. 2005 (190) ELT 241 (Tri.-Bang.) (iv) LG Electronics Pvt. Ltd. 2010 (255) ELT 135 (Tri.-Mumbai) as upheld by the Hon ble Supreme Court in Commissioner V. L.G. Electronics Pvt. Ltd. 2014 (308) ELT A118 (Bom.) and upheld by the Hon ble Supreme Court in Commissioner Vs. L.G. Electronics Pvt. Ltd. 2016 (341) E.L.T. A223 (S.C.) (v) P.R. Rolling Mills Pvt. Ltd. 2010 (249) ELT 232 (Tri. Bang.) (vi) Commissioner Vs. P.R. Rolling Mills Pvt. Ltd. 2010 (260) ELT A84 (S.C.) (vii) Vishnu Dyeing Printing Works - 2008 (221) ELT 369 (Tri.-Mumbai) (viii) Commissioner Vs. Vishnu Dyeing Printing Works 2009 (238) ELT A84 (Bom.). Without prejudice he further submits that since the duty and interest has been paid prior to issuance of show cause notice, the show cause notice would not have been issued or it should be deemed to have been concluded, as per the provisions of Section 11A (2B) of Central Excise Act,1944. He placed reliance on the following judgments: (i) Tirupathi Fuels Pvt. Ltd.- 2017 (7) GSTL 142 (A.P.) (ii) Commissioner V. Tirupathi Fuels Pvt. Ltd. -2018 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he credit taken in August, 2010 show cause notice was issued on 09.09.2011 is clearly time barred. 5. Shri Sydney D Silva, learned Additional Commissioner A.R. appearing on behalf of the Revenue reiterates the finding of the impugned order. He placed reliance on Tribunal s Larger Bench order reported at Eicher Motors Ltd. Vs. Commissioner of C. Ex., Indore 2008 (228) ELT 43 (Tri.LB). 6. We have carefully considered the submissions made by both the sides and perused the records. First we take the Appeal No. E/760/2012, in this case the issue to be decided are as under: (i) Whether valuation of job work goods is governed by Rule 8 of Central Excise (Valuation) Rules, 2000 or on cost construction method i.e. cost of raw material plus job charges. (ii) Whether there is suppression of fact or malafide intention in non-payment/short-payment of duty on the job work goods on the part of the appellant. In the impugned order, the adjudicating authority has invoked Rule 8 of the Central Excise (Valuation) Rules,2000 according to which the demand was raised calculating the assessable value i.e. cost of manufacture plus 10% notional profits. We find that in the present case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the view that the valuation of job-worked goods in the present case, adopted by the appellant i.e. cost of raw material plus job charged s correct and legal in view of the law laid down by the Hon ble Supreme Court judgements in the case of Ujagar Prints Vs. Union of India 1988 (38) ELT 535 (S.C.) and Pawan Biscuits Co. Ltd. Vs. Collector 2000 (120) ET 24 (S.C.). As regards the submissions made by the appellant whether there is suppression of fact with malafide intention for non-payment/short-payment of duty, we find that the appellant have been paying the excise duty. The only lapse is that the appellant have not revised the price after 2006, however on pointing out by the audit they have paid the duty along with interest. We also find that the duty so paid/payable by the appellant is undisputedly available as Cenvat Credit to the principal manufacturer M/s. Total Oil India Pvt. Ltd. Therefore, it is a clear case of revenue neutral. In catena of case law including the case laws cited by the learned Counsel, it was held that where there is situation of revenue neutrality the malafide intention cannot be attributed to the assessee. For this reason also, we find that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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