2013 (11) TMI 584 - AT - Central Excise

Appellant directed to deposit Rs. 3,75,000/- within 8 weeks, discrepancies found in valuation, no complete waiver granted.

The tribunal directed the appellant to deposit Rs. 3,75,000/- within eight weeks and report compliance, allowing a waiver of pre-deposit for the balance ... Undervaluation of Goods – Free supply of materials –Held that:- The valuation of the final product, if any should be done only at the place of clearance of the goods and not at the recipient’s end - Prima facie, the price for the raw material as has been supplied to the appellant seems to be depressed, and the correct price during the relevant period of the said raw material has to be ascertained - the appellant had supplied back the Pivaloyl Chloride manufactured out of the crude Pivalic Acid received from M/s. Aurobindo Pharma Limited only to M/s. Aurobindo Pharma Limited and there is nothing on record to show that the appellant had cleared the Pivaloyl Chloride to other customers also, which is manufactured by using the Pivalic Acid received from M/s. Aurobindo Pharma Limited. Waiver of Pre-deposit – The issue needs to be gone into details which can be done only at the time of final hearing of the appeal - the appellant has not made out a prima facie case for complete waiver of pre-deposit of amount of duty - the appellant directed to deposit an amount of Rupees three lakh seventy five thousand as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted. Issues:1. Stay petition for waiver of pre-deposit of duty, interest, and penalty.2. Undervaluation of goods due to incorrect valuation of free supply of materials.3. Dispute regarding the valuation of raw materials received and final products supplied.4. Prima facie evaluation of the case for waiver of pre-deposit.Analysis:The appellant filed a stay petition seeking a waiver of pre-deposit of duty amounting to Rs. 14,73,600/- along with interest and penalty. The adjudicating authority confirmed the amounts due to the appellant's alleged undervaluation of goods by not including the correct value of free supply of materials from the principal manufacturer. The appellant argued that they are a manufacturer of Pivaloyl Chloride, with crude Pivalic Acid as the basic raw material supplied by M/s. Aurobindo Pharma Limited. The appellant contended that the valuation of the final product should be done at the place of clearance and not at the recipient's end, emphasizing their role as a job worker converting raw materials into the final product.Upon hearing both sides, the tribunal observed that the appellant had been receiving crude Pivalic Acid at a significantly lower price from M/s. Aurobindo Pharma Limited compared to the market price during the relevant period. The tribunal noted the discrepancy in prices when the appellant supplied the final product back to M/s. Aurobindo Pharma Limited as opposed to selling it to other customers. The tribunal found the issue required detailed examination during the final appeal hearing. Consequently, the tribunal directed the appellant to deposit Rs. 3,75,000/- within eight weeks and report compliance, allowing a waiver of pre-deposit for the balance amounts pending the appeal's disposal.In conclusion, the tribunal did not find a prima facie case for a complete waiver of the pre-deposit amount confirmed by the adjudicating authority. The tribunal emphasized the need for further investigation into the valuation of raw materials and final products, indicating that a detailed examination would be conducted during the final appeal hearing. The directive to deposit a partial amount and the stay on recovery of the balance pending appeal signify the tribunal's cautious approach in assessing the appellant's claims and the underlying valuation discrepancies.