TaxTMI 
TaxTMI 
2023 (10) TMI 315
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....eriod 1982-83 to 2004-05 were taken up by the Deputy Commissioner of Central Excise, Bhagalpur for finalization. The Deputy Commissioner has passed an Order-in-Original dated 12.12.2007, wherein he has finalized the provisional assessments upto 2004-05 and upon finalization, directed the Appellant to pay an amount of Rs.3,99,41,490/- as differential duty. In addition to the issue of valuation, the said Order-in-Original also dealt with eligibility of Modvat claim amounts to Rs.114.44 lakhs for the period 1986-87 to 1993-94 and disallowed the credit. On appeal, the Commissioner (Appeals) allowed the Modvat credit to the Appellant, vide impugned order dated 23.01.2009. However, regarding the valuation issue, he has remanded the matter to the adjudicating authority for fresh adjudication. Aggrieved against the remanding of the mater on valuation issue, the Appellant has filed the present appeal before this Tribunal. Thus, the dispute in the present appeal is only related to the method of valuation adopted by the Deputy Commissioner for finalization of the provisional assessments for the disputed period. 2. While finalizing the provisional assessments, the Deputy Commissioner has arri....
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....ead and other elements in cost of production is concerned, the contention and explanation submitted by the assessee appears to be reasonable". There is no discussion or finding on any of the Accounting figures and compliance with the norms. Both, the Special Audit Team and the Lower Adjudicator have been content to just define text book accounting terms. No doubt, it is highly professional subject, so all the more, expertise of professionals ought to have been secured. At the Appellate stage to come and seek remand for a matter that is pending since 23.03.1982 is not in the interest of Revenue. Further, vide CBEC Circular No.382/15/98-CX dated 19.03.1998, time limit for finalizing provisional assessment has been fixed. The instant case is pending now for almost 27 years which is an unreasonable span of time. The ground reality also cannot be lost track of, personnel on both sides changing, and rules/regulations/circulars being lost track of due to efflux of time. Since the impugned order has only made a fleeting reference to the theoretical parameters of CAS 4 and CAS 2 without any analysis whatsoever to the assessee's operating figures, I am reluctantly compelled to remand thi....
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....ng terms." Even a cursory glance at the records of the case and even the appeal memorandum filed by the Department would show the fallacy in the above finding. By remanding the matter, the Commissioner (Appeals) has, in one stroke, swept aside several hours of painstaking efforts on the part of the Departmental officials and the officials of the Appellant, who had diligently undertaken the mammoth exercise with due care. This has been done without even an iota of evidence produced by the Department to show any error in the Appellant's workings. They further contended that the Appellate functions are restricted to remedying defects in the order of the lower authority and not an invitation to throw open the entire dispute for fresh investigation. The Commissioner (Appeals) has practically given the Department a free hand to raise any dispute on valuation. If such an approach is permitted, the matter will never reach finality. The observation of the Commissioner (Appeals) that expertise of professionals ought to have been secured, is not justified in the present case. He failed to note that a conscious decision was made by the Chief Commissioner for finalization of the provisional ass....
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....at whether unabsorbed overheads are includable in the cost of production or not is a legal principle that is to be decided by an expert. In this case, for the purpose of arriving at the cost of production, Cost Audit under Section 14 A of the Central Excise Act, 1944 by an independent Cost Accountant was ordered by the Chief Commissioner. In addition to this, the Chief Commissioner, Central Excise, Ranchi Zone, Patna has also constituted a special team to finalize the provisional assessment. On 14.11.07, the special team submitted their report. Though they were not professionally qualified to study the issue and submit a report, a sincere effort has been made to adopt the broad principles of CAS-4 to arrive at the cost of production. It was also observed by the special team that the cost incurred against the expenditure under "unabsorbed overheads" has not been considered while calculating the cost of production. We observe that this observation of the Special Team which is the basis of this appeal by the department has not been supported by any evidence. When all the figures supplied by the Appellant were duly certified by an independent Cost Accountant and were further scrutinize....