TaxTMI 
TaxTMI 
2017 (3) TMI 1001
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....the subsequent periods. The period of dispute in these appeals is from April 2002 to March 2005. 2. As the appellants were clearing dutiable goods to their sister concern, they were adopting valuation based on the cost of manufacture in terms of Rule 8 of Valuation Rules. The assessments, which were made provisionally, were finalized on production of certificate of cost given by the Chartered Accountant. For the year 2002-2003, the Jurisdictional Assistant Commissioner finalized the provisional assessment and issued order dated 28/08/2003. The said order recorded that the assessee has submitted the requisite cost certificate from Chartered Accountant and cost calculations as per Rule 8 which was checked and found correct. The final assessment order concluded that the assessee paid an excess amount of Rs. 9,29,435/- for the clearances during the financial year 2002-203. Thereafter, a show cause notice dated 26/08/2004 was issued by the Commissioner alleging that the valuation as per Rule 8 has been improperly done by the appellant. It was alleged that the appellants have misdeclared the amounts of overheads which resulted in fixing lesser value. The case was adjudicated. The Comm....
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....orms as per CAS-4. They have followed such standard and obtained a certificate of Chartered Accountant. They have given the basis of calculation of overheads etc. There is no justification for varying the value as concluded in the impugned orders ; (iv) the learned Counsel further elaborated on the provision of CAS-4. Para 5.9 of the said standards deals with absorption of overheads. Reference was also made to para 4.3, 4.4 of CAS-2. It is the submission of the appellant that the steps mentioned in the said paragraphs, especially average of best of 5 years of production, has not been followed by the department in calculating normal achievable capacity of production. The appellants also contested the correctness of figures taken under WIP. They have also submitted a table showing break up of WIP into (a) materials and (b) overhead expenses (v) the appellants strongly contested the imposition of penalty under Section 11AC for the assessment year 2002- 2003. The dispute, if any, is relating to calculation of overheads and is one of interpretation of the provision of Valuation Rules and criteria of CAS-4. In such situation, there can be no question of suppression or f....
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.... held that Section 11A does not indicate that the legislature intended to override Section 35E. Both the sections have to be read harmoniously. It was held that once an application for refund is allowed under Section 11B the procedure under Section 35E for review has to be followed. In the present case, we note that quasi-judicial, speaking orders have been passed by the Assessing Authority and the assessments were finalized. Without reviewing the said order under Section 35E, the learned Commissioner/Additional Commissioner issued demands to collect short paid Central Excise duty in terms of Section 11A, invoking suppression of fact by the appellant. 7. Apart from not following the legal procedure under Section 35E for reviewing the original order, the learned Commissioner justified the demand on the ground, that the suppression of fact/mis-declaration on the part of the appellant was detected by the Department resulting in the fresh demand proceedings. We examined the nature of such alleged suppression by the appellant. It is clearly recorded in the show cause notice as well as in the impugned orders that the appellants submitted costing details certified by Chartered Accounta....
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....Court in CCE vs. Charminar Non Wovens Ltd. reported in 2004 (167) E.L.T. 372 (S.C.) was examining correct classification of floor coverings. The Hon'ble Jharkhand High Court in Jalan Carbons and Chemicals Ltd. vs. Union of India reported in 2011 (270) E.L.T. 43 (Jhar.), held that when the department discovered positive evidence of misrepresentation the notice issued cannot be challenged in writ-petitions. We note that none of these decisions are on the point now considered by us regarding non-compliance of provision of Section 35E by the Reviewing Authority. In the present case, as already noted, no further fresh evidence were discussed. The records of the assessee were examined and interpreted differently by the Revenue as against the certificate of C.A. submitted by the appellant. As already noted by us, we find such proceedings under Section 11A is not legally sustainable. Accordingly, we find that appeals No. E/3684/2005, E/3916/2006 are to be allowed, only on this legal ground. 8. Regarding the third appeal No. E/3872/2006 against the order of Commissioner (Appeals), we find that the impugned order is cryptic and did not deal with the detailed submission made by the appella....