2007 (5) TMI 103 - AT - Central Excise

Tribunal grants waiver in undervaluation case, criticizes Commissioner's reliance on cost audit report

The Tribunal granted waiver of pre-deposit of duty and penalty in the case involving undervaluation of goods by an appellant manufacturing machinery for ... Valuation (Central Excise) - Alleged that (i) appellants have undervalued the goods manufactured and supplied (ii) Misdecleration of sale (ii) Matter remanded for fresh adjudication Issues:1. Waiver of pre-deposit of duty and penalty2. Undervaluation of goods3. Demand of duty based on cost audit report4. Contract analysis and approval of price break up5. Escalation in price of raw materials affecting cost of manufactureAnalysis:1. The judgment dealt with two applications for waiver of pre-deposit of duty and penalty imposed by the impugned order. The Tribunal decided to dispose of the appeals themselves after granting the waiver of pre-deposit, indicating a shift in focus during the hearing process.2. The case involved an appellant engaged in the manufacture of machinery and equipment for the sugar industry. The appellant participated in tenders for supply and installation of machinery based on cost estimations prepared at the time of bidding. The supply contract covered machinery manufactured by the appellant and parts sourced from other manufacturers. The appellant contended that the finalized price break-up approved by the customer, including statutory authorities' certification, could not be altered post-approval despite cost escalations over the manufacturing period.3. Investigations in 2001 led to a Show Cause Notice alleging undervaluation of goods by the appellant, resulting in a demand for duty. The undervaluation was linked to selling goods below manufacturing costs and price discrepancies in bought-out items. Additional duty demands were made concerning goods cleared by a non-functional unit and escalation bills raised during a specific period.4. The appellant argued that duty demands did not consider the competitive bidding margins, price fluctuations due to time lag between order and execution, and predetermined selling prices for bought-out items. They emphasized the concept of engineering costs in turnkey jobs, performance guarantees for bought-out items, and the non-negotiability of approved price break-ups by customers.5. The Tribunal found the Commissioner's order solely reliant on the cost audit report, lacking analysis of the contracts and price approval processes. It highlighted the need to assess bid mechanisms, price negotiations, cost escalations, contract durations, and engineering charges to determine the impact on cost of manufacture vis-a-vis selling prices. Consequently, the matter was remanded back to the Commissioner for a comprehensive review of all contract-related submissions and circumstances, with the appeals allowed for remand and keeping all issues open for further consideration.