2013 (11) TMI 1466 - AT - Central Excise

CESTAT Kolkata: Appellant wins waiver case under Sec 11AC. Commissioner's valuation method deemed incorrect.

The Appellate Tribunal CESTAT KOLKATA ruled in favor of the appellant in the case involving waiver of pre-deposit of duty and penalty under Section 11AC ... Determination of the assessable value - TMT bars manufactured and cleared from factory to the premises of consignment agent –Waiver of Pre-deposit - Revenue was of the view that the price at which the goods were sold by the consignment agent has to be adopted for the determination of value – Held that:- The Commissioner though acknowledged the principle of adopting the selling price from the premises of consignment Agent nearest to the time of clearances of goods from the factory of Applicant, as the basis for determination of assessable value of goods transferred from the factory to the premises of consignment Agent, but wrongly adopted a single uniform price for the whole month in determining the value of said stock transferred goods - Prima facie, there was no merit in the reasoning advanced by the Commissioner in adopting the selling price of the buyer of the consignment agent - The applicant have offered to make pre-deposit of Rs.10,00,000 – Thus, assessee is directed to deposit Rupees Ten Lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted. Issues involved:Application for waiver of pre-deposit of duty and penalty under Section 11AC of Central Excise Act, 1944 based on the determination of assessable value of TMT bars cleared by the applicant from their factory to the premises of their consignment agent.Detailed Analysis:Issue 1: Application for waiver of pre-deposit of duty and penaltyThe appellant sought waiver of pre-deposit of duty amounting to Rs.5,14,26,260/- and an equal penalty under Section 11AC of the Central Excise Act, 1944. The appellant contended that they had adopted the selling price of goods by their consignment agent nearest to the time of clearance from the factory for the determination of value and payment of duty, contrary to the department's method of using the highest selling price during the month of clearance. The appellant had already paid a differential duty of Rs.13,52,000/- and offered to deposit Rs.10,00,000/- as interest. The issue revolved around the correct method of determining the assessable value of the TMT bars.Issue 2: Determination of assessable valueThe main issue in the case was the determination of the assessable value of the TMT bars cleared by the appellant from their factory to the consignment agent's premises. The Revenue argued for adopting the price at which the consignment agent sold the goods for valuation, while the appellant contended that a single uniform price for the whole month was incorrectly applied by the Commissioner. The Tribunal found that the Commissioner's method of using a single uniform price for all clearances from the factory to the consignment agent's premises was contrary to the Central Excise Valuation Rules, 2000. Moreover, the Tribunal did not find merit in the reasoning behind adopting the selling price of the consignment agent's buyer without evidence or allegation in the notice. The appellant was directed to deposit Rs.10,00,000/- within four weeks, and on compliance, the balance amount of dues would be waived.In conclusion, the judgment by the Appellate Tribunal CESTAT KOLKATA addressed the issues of waiver of pre-deposit of duty and penalty, as well as the correct determination of the assessable value of TMT bars. The Tribunal found the Commissioner's method of valuation to be incorrect and directed the appellant to make a specified deposit while waiving the balance amount of dues pending the appeal process.