TaxTMI 
TaxTMI 
2018 (2) TMI 132
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....ts/branches located all over India for consumption/use to provide services to their customers, they adopted the valuation i.e. only the cost of production. The case of the department is that as there were no sale it appeared that the value of excisable goods manufactured by the respondent should have been determined as per Section 4(1) (b) of the Central Excise Act, 1944 read with Rule 11 and Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 i.e. by cost construction method. Accordingly the respondent were required to determine the assessable value of the excisable goods at 110% of the cost of production of the said goods. Accordingly they have undervalued the goods, consequently there is a short....
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....e Central Excise (Valuation) Rules 2000, wherein Rule 8 of the Central Excise (Valuation) Rules clearly prescribed the valuation at the rate of 110% of the cost of production. The provisions of Rule 6(b) was different from the Rule 8 of the Central Excise (Valuation) Rules, which is applicable in the present case. Therefore the Tribunal judgment based on PCC Pole Factory(supra) judgment of the Hon'ble Apex Court is not applicable as the same has not considered Rule 8 independently. 3. Shri M.H. Patil, Ld. Counsel appearing on behalf of the respondent submits that the respondent s own case has already settled by this Tribunal in the case of B.S.N.L. Vs. Commissioner of C. Ex., Haldia 2007 (215) E.L.T. 127 (Tri.-Kolkata). This judgment of ....
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....made by both the sides. As regard the issue raised by the Ld. Counsel that once the Revenue accepted the BSNL s Tribunal decision it is not allowed for them to raise the question on the same issue. We find that the issue involved is a valuation of excisable goods which is neat question of law, question of law can be raised at any stage when the matter is before the Tribunal. The Tribunal can very well decide the matter independently irrespective whether the earlier judgment on the same issue has been accepted by the department. Therefore we do not agree at this stage, the issue cannot be re-decided on its merit. Now we take up the matter to decide on merit. We find that in the present case for the purpose of valuation, Central Excise (Valua....
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.... per reading of the above Rule 8 of the Central Excise (Valuation) Rules, it seen that even though the goods are not used by the respondent or on their behalf but by virtue of Rule 11 of the Central Excise (Valuation) Rules, the most appropriate Rule is Rule 8. Therefore in accordance with Rule 8 Valuation should be 110% of the cost of "production". The Commissioner (Appeals) decided the matter solely on the basis of Tribunal s order in the respondent s case reported in 2007 (215) ELT 127 (Tri.-Kolkata). The relevant order portion is reproduced below: "Heard both sides. Shri N.C. Roychaudhary , ld. Sr. advocate appearing for M/s. BSNL states that w.e.f. 1-10-2000, the Department of Telephones was corporaterised to form the present ....
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....are not captively consumed for further manufacture/production. Accordingly, we set aside the impugned order to the extent appealed against and remand the matter to the original authority for requantifying the duty amount. The appellants shall be eligible for consequential refund, if any. 4. As regards the penalty, considering the facts and circumstances of the case and that the period relates to immediately after corporatisation of the Department of Telephones to M/s. BSNL and the prevailing uncertainty in the matter of levy and demand of duty during the interim period and since there is also no suppression of facts, we set aside the penalty imposed on the appellants. The appeal is allowed in the above terms." From the above ord....
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.... cannot be sustained. The order made by the Tribunal is, therefore, set aside and the enhancement to the extent of 10 per cent is deleted. 3. The appeal is allowed accordingly. Each party shall bear its own costs." The above judgment was passed on the issue of Valuation under Rule 6(b) of erstwhile Central Excise (Valuation) Rules, 1975 which reads as under: "Where the excisable goods are not sold by the assessee but are used or consumed by him or on his behalf in the production or manufacture of other articles, the value shall be based-" (i) On the value of the comparable goods produced or manufactured by the assessee or by any other assessee. (ii) If the value cannot be determined under sub-clause (i....