2019 (3) TMI 855 - AT - Central Excise

Tribunal remands order for value redetermination & penalty review under tax laws

Industrial Tubes Manufacturers Pvt. Ltd., T.U. Shenava, T.V. Shetty, Vasanth Nadar Versus Commissioner of Central Excise, Thane-I (Vice-Versa)

The tribunal set aside parts of the Commissioner's order and remanded the matter for redetermination of the value of raw materials, applicability of the ... Valuation - Job Work - the value of raw material as adopted for determination of assessable value is not correct - What would be principles of valuation of the goods under consideration? - Circular No 619/10/2002-CX dated 19th February 2002 - Held that:- There is no dispute that in the present case the finished goods namely 90/10 New Cupro Nickel Tubes, have been manufactured and supplied by the Appellant 1 to M/s NTPC and M/s GIPCL from the raw material supplied to them by the said customers. Since these goods have been processed and manufactured out of the raw material supplied by the customers appellants have claimed that valuation of the goods should be done treating the activities undertaken by them as job work - in the present case the valuation of the finished goods has to be determined in manner as clarified by the Board in terms of the above circular. What should be the value of raw material in the case? - Held that:- In case of job work, done on the behalf of raw material supplier, the assessable value has to be determined taking into account all the expenses including the manufacturing/ processing profits incurred upto the point of clearance from the premises of job worker. Further the value of the goods cleared by a job worker/ processor will be intrinsic value of the same/ similar or like goods cleared from the premises of the job worker. Whether extended period of limitation as proviso to Section 11A(1) of Central Excise Act, 1944 can be invoked in the facts and circumstances of this case? - Held that:- In the present case there is misdeclaration of value by the appellant - In case of M/s NTPC, Commissioner has not recorded any finding for invoking or not invoking the extended period of limitation - the matter remanded back to Commissioner for recording a specific finding in this respect after considering all the evidences as available on record. Whether penalty under Section 11AC justifiable in the facts of the present case? - Held that:- It is now settled principle in law that penalty under Section 11AC is justified in case where the provision of extended period of limitation as per proviso to section 11A(1) is held to be invokable - the penalty under Section 11AC is imposable in the present case. Since for determination of value and limitation issues in respect of supplies made to M/s NTPC is being remanded to the Commissioner, we are of the view that Commissioner should determine this aspect after rendering a finding on the other two issues. Thus matter in this respect is remanded back to the Commissioner for redetermination of quantum of penalty under Section 11AC. Whether penalty under Rule 26 of Central Excise Rules, 1944 justifiable on the officers of the Company in the present case? - Held that:- Since the issue in respect of determination of the assessable value and period of limitation in respect of supplies made to M/s NTPC is being remanded back to the adjudicating authority, and in case of supplies made to M/s GIPCL for redetermination of assessable value, the penalties on these officers are set aside and matter remanded for redetermination of penalties on the said three officers namely Shri T U Shenava Managing Director, Shri T V Shetty, Marketing Manager and Shri Vasant Nadar, Authorized Signatory & Factory incharge of M/s ITMPL. Demand of interest u/s 11AB of CEA - Held that:- Since interest is associated with the short payment of duty on the due date, there is no hesitation in sustaining the demand of interest under Section 11AB. Appeal allowed by way of remand. Issues Involved:1. Principles of valuation of the goods under consideration.2. Determination of the value of raw material.3. Invocation of the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act, 1944.4. Justifiability of penalty under Section 11AC.5. Justifiability of penalty under Rule 26 of the Central Excise Rules, 2002 on the officers of the Company.Detailed Analysis:1. Principles of Valuation of the Goods Under Consideration:The tribunal confirmed that the valuation of the finished goods, namely 90/10 New Cupro Nickel Tubes, should be done treating the activities undertaken by the appellant as job work. This should be based on the principles laid down by the Apex Court in the case of Ujjagar Prints and Pawan Biscuits, as clarified by Circular No 619/10/2002-CX dated 19th February 2002. The valuation should include the job charges, cost of materials used, and manufacturing profit and expenses, excluding the buyer's post-manufacturing profits and expenses.2. Determination of the Value of Raw Material:The tribunal found inconsistencies in the declared values of raw materials supplied by M/s NTPC and M/s GIPCL. The declared value of Rs. 224.40 per kg by M/s NTPC was based on a bid price from an e-auction, which did not result in an actual sale. The tribunal rejected this as a reasonable basis for determining the value. Similarly, the value declared by M/s GIPCL was based on the price of fresh tubes from 1990-91, which was deemed irrelevant for the year 2006-07. The tribunal emphasized that the value should be determined based on the metal recovery from the waste tubes and the prices of metals as per the MCX Index. The matter was remanded to the Commissioner for redetermination of the value based on these principles.3. Invocation of the Extended Period of Limitation:The tribunal upheld the invocation of the extended period of limitation under the proviso to Section 11A(1) for the case involving M/s GIPCL, citing deliberate misdeclaration and a devised modus operandi to evade duty. However, for M/s NTPC, the tribunal remanded the matter to the Commissioner to record a specific finding on the applicability of the extended period of limitation, considering all available evidence.4. Justifiability of Penalty Under Section 11AC:The tribunal held that the penalty under Section 11AC is justified where the extended period of limitation is invokable, referencing the decisions in Dharmendra Textile Processors and Rajasthan Spinning and Weaving Mills. Since the matter for determination of value and limitation issues for M/s NTPC was remanded, the tribunal directed the Commissioner to redetermine the quantum of penalty under Section 11AC after rendering findings on the other issues.5. Justifiability of Penalty Under Rule 26 of the Central Excise Rules, 2002:The tribunal noted that penalties under Rule 26 are justified if the officers were involved in the misdeclaration and had knowledge of the potential confiscation of goods. However, since the issues of assessable value and limitation for M/s NTPC and redetermination of assessable value for M/s GIPCL were remanded, the penalties on the officers were set aside and remanded for redetermination.Conclusion:The tribunal set aside parts of the Commissioner's order and remanded the matter for redetermination of the value of raw materials, applicability of the extended period of limitation, and penalties under Section 11AC and Rule 26. The demand for interest under Section 11AB was sustained. All five appeals were allowed and remanded to the adjudicating authority for further consideration.