TMI Blog2004 (8) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... to them on the ground that they have undervalued the goods transferred by them from BMF-I to BMF-II and accordingly demanded duty of Rs. 20,78,993/- for the period from November 1995 to October 2000. The Commissioner confirmed the demand and imposed a penalty of Rs. 18,09,160/- under Section 11AC and penalty of Rs. 3,70,000/- under Rule 173Q of the Central Excise Rules, 1944, on BMF-I. 3. Shri Raghavan, ld. Advocate pleaded that he is contesting the Order-in-Original of the Commissioner on three grounds, namely - (i) The goods in dispute are not marketable. (ii) Transfer to other unit of the same manufacturer is revenue neutral as has been upheld by the Larger Bench of the Tribunal in case of Jay Yuhshin Ltd. v. CCE, New Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of duty. The case of the Department is that the appellants have undervalued the goods which are cleared to their second unit. He stated that the plea of the appellants that the exercise is revenue neutral is not correct. He said that the issue is not of revenue neutrality but the issue is of determination of the correct duty. He stated that the appellant's claim is that the costing has been done according to provisions of Section 4 read with the Valuation Rules. According to the decision of the Supreme Court in the case of Bombay Tyres International - 1983 (14) E.L.T. 1896 and in the case of MRF Ltd. [1995 (77) E.L.T. 433 (S.C.)], the selling and distribution expenses which enrich the value of the goods are to be added in the assessab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also not the issue in show cause notice before the Commissioner for the decision. The appellants were themselves paying duty on the product after filing classification declaration and submitting monthly RT 12 returns without any dispute. Therefore, raising of this issue by the appellants at this stage cannot be accepted. The issue in the present proceeding is only of undervaluation and not of excisability. Since the appellants were not selling the goods to others but only transferring the goods to their another factory at Chennai (BMF-II), therefore value is required to be determined in accordance with Central Excise Valuation Rules, 1975 read with Section 4(1)(b) of the Central Excise Act. Accordingly the assessable value was proposed to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the investigating authority contains administrative overheads in relation to activity other than manufacturing activities like marketing, project management, corporate office expenses, etc. which are required to be excluded as per CAS-4 (Cost Accounting Standard-4). There cannot be sale to self. Therefore selling expenses are to be excluded. The appellants have not shown that how they are concluding that the selling distribution overheads are included in the cost. In the absence of any evidence, it is not possible for us to come to a definite conclusion. We, therefore, remand the case back to the Commissioner to re-calculate the assessable value of the goods as per CAS-4. The appeal is allowed by way of remand. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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