2007 (2) TMI 38 - AT - Central Excise

Appellant challenges recovery order for alleged undervaluation, Tribunal rules in favor.

The appellant challenged a recovery order under Rule 9(2) of the Central Excise Rules, 1944, disputing the recovery of Rs. 3,60,089.84 for allegedly ... Valuation (Central Excise) – Alleged that appellant had suppressed the fact of agreement and assessable value and accordingly redemption fine & penalty composed on him – Authority after considering the fact allow the appeal with consequential relief. Issues:1. Challenge to recovery order under Rule 9(2) of Central Excise Rules, 1944.2. Allegation of suppressing facts regarding agreement with another party and real assessable value.3. Interpretation of Notification No. 140/83 dated 5-5-1983 for excisable goods.4. Determination of assessable value under Section 4(1)(a) of Central Excise Act, 1944.5. Consideration of normal price and wholesale trade in the sale agreement.6. Oversight in drafting the show cause notice affecting the case outcome.Analysis:1. The appellant contested the recovery order issued under Rule 9(2) of the Central Excise Rules, 1944, challenging the recovery of Rs. 3,60,089.84 based on allegations of suppressing facts related to an agreement with M/s. Bakson Homeo Pharmacy and the real assessable value. The impugned order confiscated seized goods and imposed fines and penalties.2. The case revolved around the appellant's manufacturing and selling of excisable goods under an agreement with another party, allegedly to benefit from a specific notification. The Revenue claimed that the appellant undervalued goods by selling them to the buyer at a lower price, not reflecting the real assessable value.3. The Principal Collector's decision favored the appellant on various issues, including the eligibility for exemption under Notification No. 140/83. However, the dispute arose concerning the determination of the assessable value, with the adjudicating authority finding the invoiced value to be undervalued, leading to the imposition of penalties.4. The judgment analyzed Section 4(1)(a) of the Central Excise Act, 1944, applicable during the relevant period, emphasizing the importance of determining the normal price for excisable goods. The agreement terms, wholesale trade considerations, and the absence of related parties were crucial in assessing the normal price for valuation purposes.5. The Tribunal concluded that the appellant's sale to the buyer under the agreement constituted wholesale trade, and the price at which goods were sold should be considered the normal price. The adjudicating authority's finding of undervaluation was deemed unjustified, especially considering the absence of retail sales and the non-related nature of the parties involved.6. Another Member highlighted an oversight in the Revenue's show cause notice, specifically regarding Clause 11 of the agreement, which could have strengthened the case against the appellant. The failure to include this vital clause in the notice was deemed detrimental to the case's outcome, indicating a lack of thorough investigation during the drafting process.