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TMI Blog2023 (6) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... ies the prices of petrochemical products worldwide. According to the Appellant, the domestic prices in the Petchem Industry are bench marked to the import parity price and hence they adopted this import parity price for the purpose of payment of duty. 2. A show cause notice dated 02.04.2003 was issued to the Appellant alleging that they have violated Rule 7 and 9 of Valuation Rules and demanded differential duty on the basis of ultimate sale price of the said goods from the depot over a period of time from 30 March 2002 to 5 November 2002. The Notice was adjudicated and the demand was confirmed vide Order-in-Original dated 30.09.2010. On appeal, the Ld. Appellate Commissioner upheld the order of the adjudicating authority, vide his order dated 10.10.2011(Impugned order). The Appellant is before us against the impugned order. 3. In their submissions, the Appellant stated that the Ld. Adjudicating Authority has accepted that there was no sale of subject goods from Appellant's depot in or around the date of clearance of the said goods from their factory. The Ld. Adjudicating Authority has also accepted that valuation was not possible either under Rule 7 or under Rule 9 of the Valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roleum products under the Central Excise regime. The Appellant placed their reliance on the decisions of the Tribunal in the case of Hindustan Petroleum Corporation limited Vs. Commissioner of Central Excise, Visakhapatnam-I [2005 (187) ELT 479 (Bang.)] and Commissioner of Central Excise, Mumbai-IV Vs. Indian Oil Corporation Limited [2014 (308) ELT 502 (Bom.)]. They also submitted that the Hon'ble Apex Court in the case of Varsha Plastics Private Limited Vs. Union of India [2009 (235) ELT 193] has held that PLATT price report or other reputed financial journals which helps in determination of the import parity price is acceptable for the purpose of valuation of goods when prices of contemporaneous imports are not available. Thus, the adoption of the PLATT price by the Appellant is justified. 8. The Appellant also contended that part of demand for the month of February 2002 is hit by limitation. The time-limit for issuance of show cause notice under Section 11A is one year from the relevant date. In the present case, clearances to the depot were effected during February 2002 to March 2002. However, the Notice was issued on 02 April 2004. As such, demand based on the clearance made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n held as under: 7. The valuation of the goods under Central Excise law is covered by Section 4. The section was amended w.e.f. 1-7-2000. The connected Central Excise Valuation Rules also were amended from this date. Rule 7 of the Central Excise Valuation Rules is applicable for the depot sales. As per the provisions of this rule, goods at the time of clearance from factory are required to be charged to Central Excise duty at such rates prevailing contemporaneously at the depot. Subsequently, if such goods are sold at higher or lower prices from the depot, there is no liability to pay differential duty or refund as the case may be. 7.1 We examined the facts of the case in the light of the amended law for depot clearances. We find that the appellants are not required to pay differential duty in cases where goods have been sold at higher prices from the depot. Like-wise, in cases where goods are sold at lower prices from the depot, the appellants will not be eligible for any refund. The Commissioner (Appeals) in the impugned order has also given detailed findings to the effect as above. He has also recorded there was no provisional assessment during the relevant period. As such, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les and on the basis of contemporaneous import. However, in the absence of any evidence with regard to contemporaneous import, reference to foreign journals that may indicate the correct international price for the purposes of Section 14 may not be irrelevant and relying upon such journal cannot be said to be altogether unreasonable. As to whether in a given case such foreign journal or for that matter PLATT's Price Report indicate correct international price of the concerned goods for the purpose of Section 14(1) would depend on facts of each case and that would be for the department to establish. The valuation of the imported goods where the transaction value in the opinion of Assessing Authority is liable to be rejected because of invoice manipulation or under-invoicing or un-realistic price or misdeclaration in respect of valuation of goods or description or where transaction value of the goods declared is ridiculously low, which of course the Assessing Authority has to justify, he must proceed to determine valuation of goods by following Customs Valuation Rules. The availability of evidence of contemporaneous import of the same goods obviously provides the best guide for deter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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