TaxTMI 
TaxTMI 
2019 (5) TMI 1284
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.... Units in the manufacture of final products. During the verification of records, it was noticed that in respect of such clearances made by them to their sister Units, the appellants have not determined the value in terms of Rule 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, inasmuch as, these goods were not sold but only transferred to their other Units. Since the valuation was not done in terms of CAS-4, show-cause notice dated 07.05.2008 was issued proposing to demand differential duty of Rs. 2,93,093/- for the period 2007-08. After due process of law, the original authority confirmed the duty demand along with interest and imposed penalty of Rs. 29,309/-. In appeal, the Commissioner (Appeals) uphe....
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.... the appellant's Unit. The cost of production has thus been arrived by taking 16.96% of the material cost as shown in the invoices for the goods cleared. The demand of duty is, therefore, correct and proper. 4. Heard both sides. 5. On perusal of the annexure to the show-cause notice, it is seen that the demand of duty is calculated on the basis of cost of production arrived after taking 16.96% of the value of goods cleared as the material cost. There is no provision in the Valuation Rules to arrive at such valuation of materials on such basis. Assessee has not produced CAS-4 certificate. It is the bounden duty of the department to appoint a Cost Accountant and obtain a CAS-4 certificate. The valuation has then to be done on the basis ....
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....ounsel for the appellant. This being the case, even if the appellant is directed to pay duty, other sister unit would be eligible for the credit. In the case of Jay Yuhshin Ltd. (supra), in a similar situation, the Larger Bench of the Tribunal has held that when there is revenue neutrality, the demand of duty is unsustainable. 6. We find that it is a fit case to set aside the demand on the basis of revenue neutrality which we hereby do. The impugned order is set aside and the appeal is allowed with consequential relief, if any." The aforesaid Tribunal decision has been upheld by the Hon'ble Apex Court as reported in 2018 (360) ELT A301 (SC). 5.3 We also find merit in the plea that the issue is hit by limitation. There is no doubt t....
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....301 (S.C.). 7. The facts reveal that the demand of duty is not based on any provisions of law. From the letter dated 28.04.2007 issued by Superintendent, Cuddalore-I to the Assistant Commissioner (Central Excise) of the very same division, it is seen that in the absence of CAS-4 certificate, the department has taken the value declared by the appellant in the invoice for the goods cleared to their sister Units. The relevant paragraphs are reproduced as under:- "It is already submitted in this office letter OC No.215/2007, dated 20.04.2007 that as the assessee had not come forward to produce the CAS-4 certificate revised draft show-cause notice based on CAS-4 could not be submitted. However, when the issue was taken up by....