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        <h1>Tribunal Upholds Value Determination and Limitations; Adjusts Penalties for Executives in Partial Appeal Victory.</h1> <h3>NIRLON LIMITED Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-V</h3> NIRLON LIMITED Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI-V - 2004 (177) E.L.T. 836 (Tri. - Mumbai) Issues Involved:1. Legality of the show cause notice issued on 3-3-2001 invoking the proviso to Section 11A(1).2. Determination of value under Rule 6(b)(ii) versus Rule 6(b)(i).3. Inclusion of notional profit in the cost of production.4. Imposition of penalty under Rule 209A.Issue-wise Detailed Analysis:1. Legality of the Show Cause Notice:The Commissioner held that the show cause notice issued on 3-3-2001 was legally tenable. The appellant had filed price declarations in 1994, which were not updated until 1998, despite changes in assessable value. The appellant mis-declared that the goods sold at the factory gate and those cleared for captive consumption were the same, suppressing the real value of the captively consumed goods. This suppression justified invoking the proviso to Section 11A(1).2. Determination of Value under Rule 6(b)(ii) versus Rule 6(b)(i):The Commissioner determined that the value of the captively consumed goods should be under Rule 6(b)(ii) because the goods sold at the factory gate differed from those cleared for captive consumption. The appellant's attempt to adopt the factory gate price for captive consumption was misleading, as the goods were not comparable. The Tribunal upheld this determination, noting that the appellant themselves had switched to Rule 6(b)(ii) from April 2000, suggesting agreement with the Commissioner's approach.3. Inclusion of Notional Profit in the Cost of Production:The Commissioner included a 10% notional profit in the cost of production, based on the company's balance sheets, which indicated profitability in the Tyre Cord division. The Tribunal upheld this inclusion, referencing the Larger Bench decision in the case of Raymonds Ltd. and the Supreme Court's ruling in Mallur Siddeswara Spinning Mills Ltd., which supported adding profit to the cost under Rule 6(b)(ii).4. Imposition of Penalty under Rule 209A:The Commissioner imposed penalties under Rule 209A on the Executive Vice-Chairman and the Manager Marketing. The Tribunal set aside the penalty on the Executive Vice-Chairman, finding no evidence of his involvement in the day-to-day affairs or in understating the value of the goods. However, the penalty on the Manager Marketing was upheld, as he was aware of the differences between the goods sold at the factory gate and those supplied for captive consumption.Additional Observations:- The Tribunal addressed the issue of revenue neutrality, noting that suppression of facts with intent to evade duty was evident, and the plea of revenue neutrality was not tenable in this case.- The invocation of the extended period of limitation under Section 11A(1) was upheld, as the department established suppression of facts.- Penalties and interest under Sections 11AC and 11AB were reduced, considering the period before these sections came into force.Final Order:(a) The determination of value under Rule 6(b)(ii) was upheld.(b) The addition of 10% profit to the cost of production was upheld.(c) The invocation of the extended period of limitation was upheld.(d) The penalty under Section 11AC was reduced to Rs. 1 crore.(e) Interest under Section 11AB was to be calculated as per the Tribunal's observations.(f) The penalty on the Executive Vice-Chairman was set aside.(g) The penalty on the Manager Marketing was upheld.The appeals were partly allowed and decided on these terms.

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