TMI Blog2023 (5) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to have allowed the adjustment of excess excise duty paid against the short payment, prior to raising any demand on the Appellant. The long range of judgments referred to by the Appellant wherein such adjustment has been allowed in the context of identical matters, matters involving CAS-4 valuation, matters involving provisional assessment and matters involving SSI exemptions are agreed upon - reliance placed in the case of THE PRINCIPAL COMMISSIONER CGST AND CENTRAL EXCISE HEADQUARTERS BHOPAL VERSUS M/S GODREJ CONSUMER PRODUCTS LTD. [ 2019 (5) TMI 222 - MADHYA PRADESH HIGH COURT ] wherein the Hon ble High Court upheld the Tribunal s order holding that 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. It is observed that demand raised vide the impugned order is not sustainable as during the relevant period the Appellant had paid the correct duty arrived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of adjudication, the Ld. Commissioner agreed with the proposition that in case identical supplies were made to the independent buyers as well as job workers, Rule 4 was applicable. However, to ascertain whether the same goods which were sent by the Appellant to the job workers were also sold to independent parties, the verification report of the jurisdictional Assistant Commissioner was sought. The jurisdictional Assistant Commissioner undertook the fact-finding activity of whether identical category of goods stock transfer is sold to the independent buyers and if so at what value and submitted his report vide a letter dated 25.02.2009 which forms part of the order dated 27.02.2009. 3. The referred report dated 25.02.2009 is elaborate and refers to various transactions of the Appellant for the relevant period and categorises the transactions in various Annexures as stated under and compared the excise duty paid and duty payable as per department. For SCN dated 02.08.2007 Annexure 1 Sold to independent buyers where the stock transfer value is higher than the sales value to independent buyers. Annexure 2 Sold to independent buyers where the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on between the Appellant and job-workers, therefore, transaction value was not available, and the valuation needed to be adopted in terms of the Valuation Rules. The Appellant valued the goods at the comparable values at which the said goods were sold to the independent parties in terms of Rule 4, while making adjustments in certain cases to account for the grades of material, at times. In this regard, the Appellant relied on the decision of the Larger Bench of Tribunal in Ispat Industries v. CCE, Raigad [2007 (209) ELT 185 (Tri LB)]. The Appellant submits that Rule 4 of the Valuation Rules allows for adjustment between the date of sale and supplies under consideration. Thus, where the exact grade was not sold at or around the same time, the Appellant arrived at the comparable price by making adjustments to the price of other grades of identical goods sold near thereto, to value the goods supplied to the job-worker. Thus, the valuation adopted by the Appellant is correct and valuation adopted in the order dated 27.02.2009 is bad in law and for such reason the said order is liable to be set aside. The Ld. Advocate for the Appellant, without prejudice to the above, al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the job-worker. Thus, in such a scenario demand is not sustainable as held by: Cce, Pune Vs. Coca-Cola India Pvt. Ltd., 2007 (213) Elt 490 (S.C.); Cce C. Vadodara-II Vs. Indeos Abs Ltd. 2010 (254) ELT 628 (Guj.), affirmedby the Hon ble Supreme Court in [2011 (267) E.L.T. A155 (S.C.)] The SCN dated 14.09.2009 is wholly time barred and that extended period of limitation has been erroneously invoked vide the said SCN, since on the identical issue previously the department had already issued the Show Cause Notice No. 31/BOL/2005 dated 04.08.2005. Thus, the department was aware of this issue and cannot allege suppression against the Appellant. In this regard, the Appellant relied upon the judgments of the Hon ble Supreme Court in Nizam Sugar Factory Vs. Coll. Of CE, AP 2006 (197) ELT 465 (S.C.) and Anand Nishikawa Co. Ltd. Vs. CCE, Meerut 2005 (188) ELT 149 (S.C.). 7. The Ld. Authorized Representative for the Department relies upon the findings of the impugned order and supports the same. 8. We have perused the records of the case and the detailed submissions made by the Ld. Advocate for the Appellant as well the contentions of the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the duty liability, excess or shortage has also to be determined on such basis. It is not tenable while for arriving at per unit duty liability the whole year data is considered for costing, for total duty liability only months when short payment was noticed were considered. In other words when CAS-4 based annual costing formed basis for arriving transaction value, the overall duty liability/short payment should be arrived at after considering duty already paid during that year on such goods. We find the reasoning given by the Original Authority against adjustment of already paid duty as untenable. Section 11B has no application in such situation, when the appellants duty liability is determined on annual CAS-4, the duty already paid during said period has to be adjusted. The question 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 alr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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