TaxTMI 
TaxTMI 
2024 (7) TMI 542
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt failed to furnish details relating to manufacture of copper anode mould, the actual cost of manufacture as against the one declared in their declarations could not be verified and hence, as per Rule 8 of the Central Excise (Valuation) Rules, 2000, the value had been calculated at 115% on the value arrived under Section 14A by the Special Audit. Two show cause notices dated 04.06.2002 and 03.10.2002 were issued proposing to demand differential duties. The adjudicating authority after due processes of law has vide Order-In-Original No. 08/JC/2005 dated 25.02.2005 and 09/JC/2005 dated 25.02.2005 confirmed the demands along with interest and also imposed penalty. Aggrieved by the orders, the appellant filed an appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide Order in Appeal Nos. 193/2005 and 194/2005 both dated 23.09.2005 remanded the matter to the adjudicating authority to decide the matter afresh by following the principles of natural justice and by applying the principles contained in the Cost Accounting Standards - 4 (CAS-4) as made applicable to Central Excise vide Circular 692/08/2003 CX dated 13.02.2003. As per the directions of the Commissioner (A....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... its' sister unit. According to the Department, the price declarations filed by the Appellant for copper anodes during the impugned period was much below the value, as was determined by the Special Audit under Section 14A of the Central Excise Act, 1944. The Ld. Counsel submitted that the copper anode moulds cast by it are not excisable products as the same are completely non-marketable and thus, do not attract levy of any excise duty. He submitted that these moulds were being tailor made in shape and size for use only at Appellant's units and are of no use for any other purpose and as such, are not marketable products. These moulds were also not available in the market. This position has neither been disputed by the Department nor any evidence against the same has ever been led by the Department. As such, the impugned order upholding the differential duty of excise against the Appellant is untenable. The Larger Bench of this Hon'ble Tribunal in the case of Shri Ramakrishna Steel Industries Ltd. vs. CCE, Madras reported in 1996 (82) ELT 575 (Tri-LB), had inter alia held that since the sand moulds were created as a core for the purpose of pouring molten metal, the said moulds were i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... which he could have raised before the lower authority, without showing any good or cogent reason for the change in view and thus places the other side at a disadvantage. More so, when the appellant admits to clearing the moulds outside their factory factory and paying duty at the time of clearance. 5.5 Persons with good causes of action should pursue the remedy with reasonable diligence at every available opportunity. 5.6 In a literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, which denotes conduct that is evidence of an intention of a party to abandon a right and also to denote conduct from which another party will be justified in inferring such an intention. 5.7 The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. The parties are required to state the compelling reason for the change in their legal stand or risk the rejection of their pleadings, for at times it may be considered unfair to the other side in sending back the dispute to the starting point after a lapse of many years. 5.8 Due to the initial stand taken by the Appell....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... As the Appellant has already paid the excise duty (differential) on the CAS-4 value of copper anodes, the levy of excise duty on the same value again for the same period is totally untenable and unjustified. 6.1 Prima facie there does not appear to be a bar on tax being a part of assessable value. The Apex Court (5 judge) in Jain Bros. & Others vs The Union Of India & Others [1970 AIR778 / 1970 SCR (3) 253], a case pertaining to Income Tax, held : It is not disputed that there can be double taxation if the legislature has distinctly enacted it. It is only when there are general words of taxation "and they have to be interpreted they cannot be so interpreted as to tax the subject twice over to the same tax (vide Channell J. in Stevens v. The Durban-Roddepoort Gold Mining Co. Ltd.('). The Constitution does not contain any prohibition against double taxation even if it be assumed that such a taxation is involved in the case of a firm and its partners after the amendment of s. 23 (5) by the Act of 1956. Nor is there any other enactment which interdicts such taxation. . . . .If any double taxation is involved the legislature itself has, in express words, sanctioned it. It is no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ult if the levy on duty to the packing material were not to be exempted would mean double taxation and therefore harsh. But the Court held that even if it is harsh, it is legal. The Supreme Court held specifically in this connection that what should be taxed is a matter not to be decided by the Courts but by the instrumentality of the functionaries. The relevant extract of the said judgement is as follows: "15. After giving anxious consideration to the rival points of view, we are inclined to agree with the view taken by the Division Bench of the Bombay High Court. It may, however, be that taxing of packing material twice, once at the rate applicable to the contents and then at the rate applicable to container, which would be the result if levy of duty on packing material were not to be exempted, may appear harsh, but it cannot be said to be illegal. What should be taxed is a matter not to be decided by the courts, but by appropriate instrumentalities or functionaries." 6.5 In Krishna Das v. Town Area Committee, Chirgaon [AIR 1991 SC 2096] the Hon'ble Apex Court held that; "28. We do not find any merit in the appellant's submission that there was double taxation in this ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ght to have been imposed under Rule 25 of the Central Excise Rules, 2002 8.1 Without prejudice to the above, Appellant submits that this Hon'ble Tribunal had vide its' Final Order dated 04.02.2016, had waived off the penalty imposed under Rule 25 of the Central Excise Rules, 2002. In view of the same, since the dispute is identical, no penalty ought to have been imposed in the present case as well. Appellant submits that since the situation in the instant case is one of revenue neutrality, the impugned order is untenable and thus, deserves to be quashed. Reliance in this regard is placed on the decision of this Hon'ble Tribunal in the case of Jindal Stainless Ltd. vs. CCE reported in 2009 (246) ELT 597. Appellant submits that for reasons more specifically stated in the preceding paragraphs, the levy of interest also ought to be set aside. 8.2 We find that the issue pertains to a case where the appellant was clearing the impugned goods on payment of duty. The dispute was relating to the valuation of the goods. The OIO has not been able to establish that the dispute involved intent of the appellant to evade payment of duty. The OIO at para 21 only records that the appellant neither....