2007 (8) TMI 10 - SC - Central Excise

SC rules Modvat credit must be reversed on stock transfers between units regardless of non-sale nature

Commissioner of Central Excise, Nagpur Versus Ballarpur Industries Ltd.

The SC reversed the Tribunal's decision regarding Modvat/Cenvat credit reversal on stock transfers. The Tribunal had ruled that since stock transfer to a ... Reversal of MODVAT credit on inputs on which credit was taken by applying rule 6(b)(i) - selling price of pulp sold by the assessee's sister units in other states - correct interpretation of the valuation principles - small quantity of pulp manufactured by the assessee was stock transferred to its sister unit - evaded payment of duty - whether in the absence of any 'sale', Rule 57CC of the Central Excise Rules, 1944 would have any application or not - HELD THAT:- Rule 57CC is a provision which seeks to recover presumptive amount at the rate of eight per cent of the price of exempted final product at the time of removal for sale. In the circumstances, the Tribunal erred in holding that Rule 57CC is not applicable to the present case as it involves stock transfer and not a sale. If the view of the Tribunal is to be accepted, then neither Section 4 of the 1944 Act nor the Valuation Rules, 1975 framed thereunder could apply. If the nature of the presumptive sum is kept in mind then there will be no conflict between our view and the view expressed by the Central Board of Excise and Customs vide Instructions based on circular No. B-42/1/96-TRU ; dated 27.9.1996. We have enunciated the above principles concerning rule 57CC on account of the total confusion both in the industry as well as in the Department. We hold that the Department was not entitled to invoke the extended period of limitation vide the first show cause notice dated 21.5.99. However, the second and third show cause notices dated 30.9.1999 for the period April, 1999 to June, 1999 and 18.11.1999 for the period July, 1999 to September, 1999 respectively are within time. Therefore, we strike down only the first show cause notice dated 21.5.1999. However, we hereby set aside the impugned judgment of the Tribunal which has held that Rule 57CC of the 1944 Rules is not applicable to this case as there was no 'sale'. In cases where the manufacturer does not comply with Rule 57CC(9), he shall debit the presumptive sum equal to eight per cent of the value of the exempted goods at the time of clearance from the factory gate. This rule would apply to stock transfers also. Thus, interpretation of Rule 57CC of the 1944 Rules, we set aside the impugned judgment of the CEGAT and remit the aforesaid second and third show cause notices to the Commissioner of Central Excise, who will decide the question of applicability of Rule 6(b)(i) and Rule 6(b)(ii) of the Valuation Rules 1975 in accordance with law. The second and the third show cause notices are alone remitted. The first show cause notice dated 21.5.1999 is set aside as time barred. However, it is made clear that Rule 7 of the Valuation Rules 1975 will not be invoked and applied to the facts of this case as it has not been mentioned in the second and the third show cause notices. It is well settled that the show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocation of Rule 7 of the Valuation Rules 1975 in the show cause notice, it would not be open to the Commissioner to invoke the said rule. The notices dated 30.9.1999 and 18.11.1999 respectively are remitted to the Commissioner for determination in accordance with the principles laid down hereinabove. The civil appeal filed by the Department stands partly allowed with no order as to costs. The core legal questions considered by the Court in this appeal were:1. Whether Rule 57CC of the Central Excise Rules, 1944 applies in the absence of a 'sale' of goods, specifically in the case of 'stock transfer' of exempted goods between sister units of the same manufacturer.2. The correct interpretation of the valuation principles under Section 4 of the Central Excise Act, 1944 and the Central Excise (Valuation) Rules, 1975, especially Rules 6(b)(i) and 6(b)(ii), in relation to the determination of the 'price' or 'value' for the purpose of Rule 57CC.3. Whether the Department was entitled to invoke the extended period of limitation under Section 11A of the Central Excise Act, 1944 for the first show cause notice.Issue-wise Detailed Analysis1. Applicability of Rule 57CC in the absence of a 'sale' and its application to stock transfersRelevant legal framework and precedents: Rule 57CC of the Central Excise Rules, 1944 mandates that where a manufacturer produces both dutiable and exempted (or nil-rated) final products using common inputs on which credit has been taken, the manufacturer must pay a presumptive amount equal to 8% of the price of the exempted goods at the time of their clearance from the factory, unless separate inventory and accounts are maintained under Sub-rule (9). Sub-rules (1), (7), (8), and (9) were particularly examined.Section 4(1) of the Central Excise Act, 1944 defines the basis of valuation for excisable goods as the 'normal price' at which goods are ordinarily sold in wholesale trade, or, if not ascertainable, the nearest equivalent determined by prescribed rules.Circular No. B-42/1/96-TRU dated 27.9.1996 clarified that the amount reversed under Rule 57CC is not excise duty but a presumptive sum and that the reversed credit is not available to the user of exempted goods as credit.Court's interpretation and reasoning: The Court held that Rule 57CC is a self-contained provision designed to recover a presumptive sum of 8% of the price of exempted goods where credit on common inputs has been taken but separate accounts are not maintained. The rule applies to all clearances of exempted goods, including stock transfers, and not only to sales. The Tribunal erred in holding that Rule 57CC does not apply in the absence of a sale.The Court emphasized that the phrase 'price charged at the time of sale' in Rule 57CC must be understood as 'price charged at the time of clearance,' which includes stock transfers. This interpretation aligns with the purpose of Rule 57CC to prevent undue credit utilization and ensure recovery of presumptive sums on exempted goods cleared from the factory.Key evidence and findings: The assessee admitted stock transfers of pulp to its sister unit and paid duty at 8% of declared cost price. The Department alleged underpayment based on higher prices of pulp sold by sister units elsewhere.Application of law to facts: Since the manufacturer did not maintain separate inventory/accounts as per Rule 57CC(9), the presumptive amount of 8% of the value of exempted goods on clearance was payable, regardless of whether the transfer was a sale or stock transfer.Treatment of competing arguments: The assessee argued that no 'sale' occurred in stock transfers and thus Rule 57CC was inapplicable. The Court rejected this, holding that Rule 57CC applies to all clearances of exempted goods and is not confined to sales. The Department's position that valuation must consider the normal price under Section 4 and Valuation Rules was accepted as consistent with Rule 57CC.Conclusion: Rule 57CC applies to stock transfers of exempted goods where credit on common inputs has been taken and separate accounts are not maintained. The manufacturer must pay 8% of the value of exempted goods at clearance, including in stock transfers.2. Interpretation and application of valuation provisions under Section 4 of the Central Excise Act and Valuation Rules, 1975Relevant legal framework and precedents: Section 4(1)(a) defines 'normal price' as the price at which goods are ordinarily sold in wholesale trade to unrelated buyers. Section 4(1)(b) provides for determination of the nearest equivalent value where goods are not sold or price is not ascertainable. Valuation Rules, 1975, particularly Rule 6(b)(i) and Rule 6(b)(ii), prescribe methods for determining the value of excisable goods.In the present case, Rule 6(b)(i) relates to valuation based on selling price to unrelated buyers, whereas Rule 6(b)(ii) relates to valuation based on cost of production plus profit and other elements.Court's interpretation and reasoning: The Court observed that Rule 57CC requires payment of a presumptive amount based on the price of exempted goods at clearance, which invokes the valuation principles under Section 4 and the Valuation Rules. The adjudicating authority had held that Rule 6(b)(i) was not applicable, leaving Rule 6(b)(ii) as the relevant provision to determine whether the assessee had included all elements like wages and profits in the declared cost price.The Court emphasized that valuation must be consistent with the normal price concept and that the presumptive amount under Rule 57CC is calculated on the value so determined.Key evidence and findings: The Department contended that the assessee undervalued the pulp by not adopting the selling prices of sister units in other states, leading to underpayment of duty. The assessee contended that it applied Rule 6(b)(ii) based on cost price and paid duty accordingly.Application of law to facts: The Court remitted the matter to the Commissioner to decide the applicability of Rule 6(b)(i) and Rule 6(b)(ii) and to determine the correct valuation in accordance with law.Treatment of competing arguments: The Department argued for valuation based on comparable sales prices under Rule 6(b)(i), while the assessee relied on cost-based valuation under Rule 6(b)(ii). The Court did not decide the valuation issue but left it to the Commissioner for fresh adjudication.Conclusion: Valuation for the purpose of Rule 57CC must be determined in accordance with Section 4 and Valuation Rules, 1975. The question of whether Rule 6(b)(i) or 6(b)(ii) applies must be decided by the Commissioner on remand.3. Invocation of extended period of limitation under Section 11A of the Central Excise ActRelevant legal framework and precedents: Section 11A allows extended limitation period for recovery of duty in cases of suppression of facts, fraud, or collusion. The Court referred to a precedent where the extended period was held not invocable in absence of clear suppression with intent to evade duty.Court's interpretation and reasoning: The Court held that 'suppression' must be construed strictly and requires willful omission with intent to evade duty. Mere incorrect statements or omissions without fraudulent intent do not amount to suppression.Key evidence and findings: The Department invoked extended limitation for the first show cause notice dated 21.5.1999, covering the period September 1996 to March 1999.Application of law to facts: The Court found no evidence of suppression with intent to evade duty and held that the extended period could not be invoked for the first show cause notice, rendering it time-barred.Treatment of competing arguments: The Department argued suppression due to alleged undervaluation; the Court rejected this for lack of willful intent.Conclusion: The first show cause notice invoking extended limitation period was set aside as time-barred. The second and third show cause notices were within limitation and remain valid.Significant Holdings'Rule 57CC is a provision which seeks to recover presumptive amount at the rate of eight per cent of the price of exempted final product at the time of removal for sale. ... This rule would apply to stock transfers also.''The phrase 'price charged at the time of sale' must be read as 'eight per cent of the value of the exempted goods'.''The provisions of Sub-rule (1) shall apply even if the inputs on which credit has been taken are not actually used or contained in any particular clearance of final products.''Suppression would mean failure to disclose full and true information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party would not constitute suppression.''The show cause notice is the foundation in the matter of levy and recovery of duty, penalty and interest. If there is no invocation of Rule 7 of the Valuation Rules 1975 in the show cause notice, it would not be open to the Commissioner to invoke the said rule.'Core principles established:- Rule 57CC applies to all clearances of exempted goods, including stock transfers, where credit on common inputs has been taken and separate accounts are not maintained.- The presumptive sum of 8% is calculated on the value of exempted goods at the time of clearance, which must be determined in accordance with Section 4 of the Central Excise Act and the Valuation Rules, 1975.- The valuation principles under Section 4 and the Valuation Rules govern the determination of the 'price' or 'value' for Rule 57CC purposes.- Extended period of limitation under Section 11A requires strict proof of suppression with intent to evade duty; mere errors or omissions without fraudulent intent do not suffice.- The Commissioner must adhere strictly to the scope of the show cause notice and cannot invoke provisions not mentioned therein.Final determinations:- The Tribunal's judgment holding Rule 57CC inapplicable to stock transfers was set aside.- The first show cause notice invoking extended limitation period was quashed as time-barred.- The second and third show cause notices were remitted to the Commissioner for fresh adjudication on valuation issues under Rule 6(b)(i) and 6(b)(ii) of the Valuation Rules, 1975.- The Department's civil appeal was partly allowed with no order as to costs.