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TMI Blog2021 (11) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... t was used by M/s. TOIL in further manufacturing process. Thus, the viscosity improver is an intermediate product for M/s. TOIL. The duty was paid by the appellant at the time of clearance of goods and the same has been availed as a credit by M/s. TOIL. The appellant has paid the duty on the assessable value of Rs. 44.67 per kg. as per declaration submitted by the appellant in 2006. The said declaration was not revised since then. The department conducted the EA-2000 audit for the period April 2006 to March 2010 and requested the appellant to revise the same and get the assessable value determined in terms of Rule 10A(iii) read with Rule 8 and as per the principles laid down in CAS-4 and get the same certified from cost accountant. The appellant submitted the certificate from the cost accountant. On the basis of the above, the appellant paid the differential duty of Rs. 1,23,00,460/- alongwith interest of Rs. 32,81,195/- prior to issue of show cause notice. The appellant has also submitted the application 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 sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Indian Extrusions - 2012 (283) E.L.T. 209 (Tri.-Mumbai) (iii) Reclamation Welding Ltd. - 2014 (308) E..T. 542 (Tri.-Ahmd.) He submits that in view of the above settled position valuation adopted by the appellant i.e. cost of manufacture plus job charges is the correct value and the value proposed by the department under Rule 8 of the Central Excise (Valuation) Rules, 2000 is not correct and legal. He alternatively submits that the appellant TCPL manufactured intermediate products which is otherwise not liable to duty under Rule 4(5)(a), if the same would have been followed by the appellant. He placed reliance on the decision of Tribunal in the case of Lawkim Ltd. 2007 (218) E.L.T. 142 (Tri.-Mumbai). Without prejudice he further submits that it has been decided in various judgments that even the value of material supplied free of cost to the job-worker is not includible in the assessable value since it would form part of the assessable value of the final product cleared 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss as the assessable value of the final product cleared by the principal manufacturer does not result into undervaluation of final product as the same does not depend on the cost of intermediate product cleared by the appellant and therefore principal manufacturer will not gain anything. The intermediate product manufactured by job worker otherwise would not liable to duty under Rule 4(5) (a), if same would have been chosen to be followed. He further submits that the Tribunal has consistently held that undervaluation in case of job worker does not lead to malafide intention on the part of job worker as ultimately credit is available to the principal manufacturer or otherwise also value of the goods will be added in the final product of the principal manufacturer. In support of his above submission on time bar he placed reliance on the following judgements: (i) Nirlong Ltd. - 2015 (320) ELT 22 (SC) (ii) M/s. Continental Foundation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved. In the present case, the job worker M/s. Turbhe Chemical Pvt. Ltd. has not sold the goods to M/s. Total Oil India Pvt. Ltd. and the transaction is of stock transfer. For this reason also Rule 9(1) (b) cannot be invoked. He placed reliance on the following judgments: (i) Karnataka Soaps & Detergents Ltd. - 2010 (258) ELT 62 (Kar.) (ii) Essar Oil Ltd. - 2014 (303) ELT 255 (Tri. Ahmd.) (iii) Jai Raj Ispat Ltd. - 2007 (217) ELT 272 (Tri. Bang) (iv) Jairaj Ispat Ltd. 2009 (245) ELT 118 (A.P.) (v) United Phosphorus Ltd. 2014 (313) ELT 418 (Tri.-Ahmd.) He further submits that since the show cause notice has been issued on the scrutiny of ER.1 return and the show cause notice itself stated that the appellant has availed the credit in the month of August 2010. There is no suppression of fact and no malafide intention on the part of the appellant. Therefore, in respect of the 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 Ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Supreme Court. As regard the judgment relied upon by the Revenue in the case of Eicher Motors Ltd. Vs. Commissioner of C. Ex., Indore - 2008 (228) ELT 43 (Tri.-LB). On careful reading of the said Larger Bench judgement, we find that in the said case the dispute is that in the hands of the job-worker while computing the assessable value whether the 10% notional profit of raw material should be included in the assessable value of final product manufactured by the job worker or otherwise. In the present case, the fact is completely different that whether the valuation in the hands of job-worker should be under Rule 8 or on cost construction method i.e. cost of raw material plus job charges. Therefore, the Larger Bench decision in the case of Eicher Motors Ltd. (supra) has no application in the present case. In view of the above settled position of law, we are 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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