TaxTMI 
TaxTMI 
2012 (9) TMI 381
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.... principal to principal basis as M/s. NL enjoyed special relationship with the said assessee. Therefore, it was alleged that the assessable value at which the assessee discharge duty on packing materials may be considered as normal price. A Show Cause Notice was issued to the assessee demanding Central Excise duty of Rs. 2,97,77,479/- (Rupees Two Crores, Ninety Seven Lakhs, Seventy Seven Thousands, Four Hundred and Seventy Nine only). On adjudication, the adjudicating authority dropped the proceedings initiated vide Show Cause Notice. Revenue is in appeal against this order of adjudicating authority. 2. The grounds of appeal are as follows : "1. The adjudicating authority has erred in re-computing the quantum of Central Exci....
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.... (iii) The conclusion derived at by observing the standards of CAS-4 regarding 'Abnormal and non-recurring cost' at Para 24.4 of the impugned order is erroneous inasmuch as the CAS-4 standards were not applicable for the period in question as discussed above. (iv) As per the accounting principles, the fixed overheads are not to be apportioned. The fixed costs are to be computed on actual basis inasmuch as the said costs are actually incurred and are not dependent on the quantity manufactured or otherwise. In the subject case, the adjudicating authority has apportioned the fixed overheads and thereby arrived at a faulty conclusion. (v) The works overhead expenses such as sp....
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.... Rule 173C of the erstwhile Central Excise Rules, 1944 and thus, it is a clear case of willful mis-declaration and suppression of the cost of production. Therefore, the extended period of 5 years is available in the present case." 3. We have gone through the details of the case both on record and the facts. The short issues to be decided in this case are (i) whether the M/s. KI and M/s. NL are related persons and all their transactions are at arm's length during the material period (ii) whether the sale price of buyers other than M/s. NL constitute assessable value of the goods sold to independent buyers and could be made applicable to the sales made to M/s. NL and (iii) whether the assessable value worked out on the basis of costin....
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....e goods were sold to independent buyers. They have paid duty even on goods cleared on job work done (other than under rule 57F(4) CER, 1944) at the same assessable value during 97-98 while all clearances for job work were under exemption rule 57F(4)." 6. The Commissioner's findings and adjudication order were primarily on the basis of decision of Hon'ble Supreme Court in the case of Calcutta Chromotype Ltd. v. Collr. of C.E., Calcutta - 1998 (99) E.L.T. 202 (S.C.). The relevant para 12 is extracted below : "12. The principle that a company under the Companies Act, 1956 is a separate entity and, therefore, where the manufacturer and the buyer are two separate companies, they cannot, than anything more, be 'related persons' wi....
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....tion of the fiction that the veil of the corporation can be lifted and its face examined in substance. The doctrine of the lifting of the veil thus marks a change in the attitude that law had originally adopted towards the concept of the separate entity or personality of the corporation. As a result of the impact of the complexity of economic factors, judicial decisions have sometimes recognised exceptions to the rule about the juristic personality of the corporation. It may be that in course of time these exceptions may grow in number and to meet the requirements of different economic problems, the theory about the personality of the corporation may be confined more and more." 7. Thereafter, the adjudicating authority has taken int....
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....rred by limitation by observing as under :- "26. Further, as regards time bar, it is contended by M/s. KI that it is clear from the records withdrawn by DGCEI officers and relied upon the documents as per Annexure B to Show Cause Notice at Sr. No. 19 & 20 pertaining to withdrawal of price lists for the period from 1996 to 1999 and assessed copies of RT-12 returns that M/s. KI had filed price lists and RT-12 regularly with the department. They submitted that they have filed the price lists from time to time with the proper officer and cleared the goods on payment of duty on the value declared by them. Further, the price list filed by them and assessment made by the competent authority have not been disputed by the jurisdictional offi....