2025 (8) TMI 568 - AT - Central Excise

Appellant and customer not related under Section 4(3)(b)(ii)-(iv); valuation must follow Rule 10(b) of CEVR

The CESTAT held that the appellant and their customer, though interconnected undertakings, were not related persons under Section 4(3)(b)(ii)-(iv) of the ... Calculation of Excise duty - appellant and their customer M/s Bony Polymers Pvt Ltd (BPPL) are related in terms of Section 4(3)(b)(i) of Central Excise Act, 1944 or not - requirement to assess the value of goods cleared at 110% of the cost of production - levy of penalties on appellants and their Managing Director and Director - extended period of limitation - levy of penalties. HELD THAT:- In order to invoke Rule 9 of CEVR, 2000, the assessee should sell the goods only to a person related; related person should be as defined under clauses (ii), (iii) & (iv) of subsection 3 of Section 4 of the Central Excise Act, 1944; then the assessable value shall be the value at which these goods are sold by the related persons to their customers were not related; if the transaction comes under the provisions of Rule 9 then valuation should be done under Rule 8 which prescribes that the assessable value shall be 110% of the cost of production. In the instant case, the appellants cleared the rubber compound manufactured by them to M/s BPPL on payment of excise duty on the transaction value; M/s BPPL further used the rubber compound in the manufacture of automobile components, which are cleared to Maruti Suzuki, Hero MotoCorp etc. In the instant case, there is no doubt that the appellants are clearing 97% of their production to M/s BPPL. The period involved is after the said Rule 9 was amended. It is found that whereas the show cause notice alleges that the appellant and M/s BPPL are related under clauses (ii), (iii) & (iv) of sub-section 3 of Section 4, it is not explained as to how they are related - the valuation of the goods cleared by the appellant to M/s BPPL requires to be done under Rule 10(b) which provides for valuation in terms of Section 4(1) of Central Excise Act, 1944. The issue is no longer Res integra. It is found that in a number of cases, it has been held that inter-connected undertakings cannot be held to be related. We find that Mumbai Bench of the Tribunal in the case of Shree Vaishnav Industries Pvt Ltd. [2025 (3) TMI 568 - CESTAT MUMBAI] gone into the issue as to whether the valuation of excisable goods cleared to an inter-connected undertaking, is to be done under Rule 8 & 9 of Central Excise Valuation Rules, 2000 or under Rule 10, the Bench held that 'as per Rule 9 of Central Excise Valuation Rules, 2000, it is clear that Rule 9 ibid shall apply only when the goods are sold through person as specified under sub-clause (ii), (iii) or (iv) of clause (b) of Section 4 of the Act. Further, Provisio of Rule 9 also suggests that merely because buyer is interconnected undertaking that alone is not sufficient for holding as related person. It is nowhere discussed in the impugned order or any evidence produced by the authorities below to state that the appellants and their interconnected undertaking are related in terms of the above provisions of the Central Excise statute. Therefore, we are of the opinion that on this ground alone the impugned order is liable to be set aside and it does not stand the scrutiny of law.' There is no mention of any CAS-4 either. Revenue has calculated the cost of production in an unscientific and unacceptable manner. We find that such a method of re-determination of the Value for the purposes of Rule 8, is not provided. The demand, considering sale value as cost of production, is factually ridiculous and legally not tenable. Extended period of limitation - levy of penalties - HELD THAT:- The Show Cause Notice is issued on conduct of an audit. Audit has taken the figures from public Documents. No substantiated allegation exists as regards suppression of fact etc with an intent to evade payment of duty. Moreover, it’s an interpretational issue and therefore extended period cannot be invoked - Penalty under Section 11AC also not imposable. Appeal allowed. 1. ISSUES:1. Whether the buyer and seller are 'related' for valuation purposes under Section 4(3)(b) of the Central Excise Act where the entities are 'inter-connected undertakings'.2. Whether valuation of goods cleared to such buyer must be determined under Rule 9 read with Rule 8 (i.e., '110% of the cost of production') or under Rule 10(b) in conjunction with Section 4(1)(a) ('transaction value').3. Whether determination of 'cost of production' for application of Rule 8 may be equated to the sale price to the related/inter-connected buyer in the absence of a CAS-4 certificate.4. Whether the 'cum-duty' / 'cum-tax-price' principle under Section 4(4)(d)(ii) must be taken into account in valuation and computation of duty.5. Whether the 'extended period' of limitation and consequent 'penalty under Section 11AC' are invocable where demand arises from audit and no allegation of suppression with intent to evade duty is made.6. Whether penalty under Rule 26(1) can be imposed on persons in charge (e.g., managerial personnel) without evidence satisfying both ingredients of the Rule (knowledge that goods are liable for confiscation and dealing with goods in the specified manner) and where no confiscation is recorded.7. Whether appropriation of amounts paid under protest and imposition of interest under Sections 11AA/11AB is sustainable where the foundational duty demand is held unsustainable.8. The scope of officer's duty to scrutinize self-assessed returns and the effect of such duty on limitation and invocation of extended period.2. RULINGS / HOLDINGS:2.1 On relatedness: The entities, though 'inter-connected undertakings', are not ipso facto 'related' for the purposes of Section 4(3)(b) unless the relationship falls within sub-clauses (ii), (iii) or (iv) of Section 4(3)(b) or the buyer is a holding company or subsidiary; mere common managerial control does not make them 'related'.2.2 On applicable valuation rule: Valuation of the goods cleared to the inter-connected undertaking must be determined under Rule 10(b) and Section 4(1)(a) (i.e., 'transaction value') where the conditions of Rule 10(a)/Rule 9 are not satisfied; Rule 9/Rule 8 (and the '110% of the cost of production' method) apply only when the buyer is related as per clauses (ii), (iii) or (iv) or is a holding/subsidiary.2.3 On Revenue's method of computation: The adoption of the sale value to the buyer as the 'cost of production' without a CAS-4 certificate is legally invalid; valuation cannot be re-determined by equating present sale value to cost of production in the absence of the prescribed costing methodology.2.4 On cum-duty / cum-tax-price: The 'cum-tax-price' / 'cum-duty' benefit under Section 4(4)(d)(ii) must be taken into account when assessing value; failure to do so renders the demand unsustainable.2.5 On extended period and Section 11AC penalty: The 'extended period' of limitation and consequential 'penalty under Section 11AC' cannot be invoked where the show cause notice does not allege suppression with intent to evade payment of duty and the matter involves a bona fide question of interpretation discovered on audit.2.6 On Rule 26(1) penalties: Penalty under Rule 26(1) requires satisfaction of both ingredients-knowledge that goods are liable for confiscation and that the person dealt with the goods in the manner specified-and is not sustainable where there is no evidence of such knowledge/dealing and no confiscation has been recorded.2.7 On appropriation and interest: Appropriation of amounts paid under protest is not legally sustainable where the underlying demand is held invalid, and amounts paid under protest are liable to refund subject to applicable law on interest under Sections 11AA/11AB.2.8 On officer scrutiny and limitation: The officer's duty to scrutinize self-assessed returns and to call for documents is operative; reliance on audit alone to trigger extended limitation is insufficient where statutory scrutiny opportunities existed and no intent to evade is alleged.3. RATIONALE:3.1 Statutory framework applied: The court applied Section 4(1)(a) and Section 4(3)(b) of the Central Excise Act, 1944 together with the definitions and Explanations (including the definition of 'inter-connected undertakings'), and Rules 8, 9 and 10 of the Central Excise Valuation Rules, 2000; the distinction between sub-clauses (ii),(iii),(iv) of Section 4(3)(b) and the notion of 'inter-connected undertakings' under the Explanation was central to the analysis.3.2 Interpretation of Rules 8-10: Rule 9 applies only where sales are to or through persons related under sub-clauses (ii), (iii) or (iv) of Section 4(3)(b); where those conditions (or Rule 10(a)'s holding/subsidiary condition) are absent, Rule 10(b) requires valuation 'as if they are not related persons' and Section 4(1)(a) transaction value governs.3.3 Precedential and administrative support: The conclusion aligns with prior tribunal authority and administrative clarification that 'inter-connected undertakings' are not automatically to be treated as 'related' for the purpose of rejecting transaction value, and a Board clarification supports that where clauses (ii)/(iii)/(iv) do not exist and buyer is not holding/subsidiary, they 'will not be considered related'.3.4 On costing procedure: The statutory scheme contemplates cost of production to be established by prescribed means (e.g., CAS-4 certificate) for application of Rule 8; re-characterising present sale price as cost of production without the prescribed certificate is 'not provided' by the Rules and is legally impermissible.3.5 On cum-tax principle: Section 4(4)(d)(ii)'s 'price-cum-duty' concept requires recognition of cum-duty/cum-tax adjustments in valuation; failure to apply the 'cum-duty benefit' distorts assessable value.3.6 On limitation and penalties: Invocation of the 'extended period' under Section 11A(4) and imposition of 'penalty under Section 11AC' requires specific allegations and evidence of suppression with intent to evade; audit-discovered interpretational issues and revenue-neutral transactions do not justify extended limitation or penalty.3.7 On Rule 26(1) mechanics: Application of Rule 26(1) is conditional on both requisite mental element (knowledge/reason to believe goods liable for confiscation) and physical dealing as specified; absent evidence of either (and absent confiscation), penalty cannot be sustained.3.8 No dissent or concurring opinion recorded; outcome follows the statutory text, rule construction and consistent tribunal authority favoring valuation under Rule 10(b) where statutory preconditions for Rule 9 are unmet, and restricting extended limitation and punitive measures where no intent to evade is shown.