2008 (6) TMI 131

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..... 3887 of 2004 is by the Commissioner against the order of the Commissioner (Appeals) Nos. 276-277-CE/BPL/2004 dated 22-4-2004 in which M/s. Sigma Heavy Engineer Industries and another are respondents. 1.3 Excise Appeal No. 3888 of 2004 is by the Commissioner against the order of the Commissioner (Appeals) Nos. 278-279-CE/BPL/2004 dated 22-4-2004 in which M/s. Narmada Equipments (P) Ltd. and another are respondents. 1.4 All these appeals involve a common issue and, therefore, are being dealt with by a common order. 2. Heard both sides. 3. The relevant facts, in brief, are as follows :- (a) BHEL sent machined cast tubes under Rule 57F(1)(ii) to the job workers, the respondent firms, for getting magnetic frame manufactured and ....

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....etermining the value of the finished product. He seeks to setaside the orders of the Commissioner (Appeals) and restoration of orders-in-original. 5. Learned Advocate for the respondents submits that there is no under-valuation and supports the order of the Commissioner (Appeals). 6.1 We have carefully considered the submissions from both sides. The issue is more in the nature of a mathematical puzzle. The original authority has treated the amount of Cenvat credit of duty paid by BHEL as additional consideration. There are many fallacies in considering the above amount as additional consideration. First of all, there is no sale of cast tubes by BHEL; as there is no sale there is no question of any sale consideration. The invoice raise....

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....he money paid by BHEL has gone only to the Government account and therefore the recipient cannot be the job workers. This accounting practice cannot make the said amount as part of the job charges. It is like a shop-keeper wanting to sell a product at Rs.100/- enhancing the price by Rs.20/- and marking the price as Rs.120/- and allowing a discount of Rs.20/- and finally selling the product at Rs.100/- and in the process making the customer feel happy 6.4 We are convinced that there is no actual increase in job charges when the excise duty paid by BHEL is taken as credit by the job worker, even though the documents of BHEL might have shown this enhanced amount i.e. actual job charges plus Cenvat credit of duty paid by BHEL as the notional....