TaxTMI 
TaxTMI 
2026 (1) TMI 1509
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....rap from their factory to their sister/inter units at a lower rate, whereas sold the identical / similar goods to the independent buyers at a higher rate, resulting in short payment of Central Excise duty amounting to Rs.3,01,036/- during the period from April 2010 to September 2010, thus allegedly contraventing the provisions contained in Section 4(1)(b) of the Central Excise Act, 1944 read with Rule 4 of the Central Excise valuation (Determination of price of excisable goods) 2002/Rules 2000 and Rules 4, 6 and 8 of the Central Excise Rules, 2002. 2.2 The matter was adjudicated. The demand of Central Excise duty was confirmed along with equivalent amount of penalty. 2.3 Aggrieved from the said order, the appellant is before us. 3. None appeared on behalf of the appellant nor any request for adjournment has been received. Considering the facts that the issue involved in this appeal, lies in a narrow compass, therefore, the appeal is taken up for disposal. 4. The short issue involved in this case is as to whether the clearances made by the appellant to its own units for captive consumption is to be valued in terms of Rule 8 of the Valuation Rules or on the basis of the p....
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....tively consumed by their own units located in other places. Therefore, the decision in the case of Ispat Industries Ltd. (supra) is also clearly not applicable to the facts of this case. 9.2. We find that the case of the appellant is squarely covered by the decision in the case ofOCL India Ltd. v. Commissioner of Central Tax, G.S.T. & C.E., Rourkela rendered videFinal Order No. 76670 of 2024 dated 26.06.2024 in Excise Appeal No. 76300 of 2018[2024 (6) TMI 1463 - CESTAT, Kolkata], wherein the facts of the case were as under: - "2. The facts of the case are that the appellant is engaged in manufacture of clinker cement. Clinker is the intermediate product to manufacture cement. The appellant has two other unit at Kapilas Cement Works, Cuttack in the State of Odisha and Bengal Cement Works at Medinapore, in the state of West Bengal which are engaged in manufacture of cement. For all three units the appellant have opted separate registration. The clinker manufactured in appellant's unit was utilized as follows: a. Captively consumed by the Appellant (Rajgangpur unit) to manufacture cement b. Stock transferred to Kapilas unit to manufacture cement....
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....India (ICWAI) has since developed the Cost Accounting Standards, CAS 2, 3 and 4, on capacity determination, overheads & cost of production for captive consumption, respectively, which were released by the Chairman CBEC on 23-1-2003. 3. It is, therefore, clarified that cost of production of captively consumed goods will henceforth be done strictly in accordance with CAS-4 Copies of CAS-4 may be obtained from the local Chapter of ICWAL. 4. Board's Circular No. 258/92/96-CX, dated 30-10-96 [1996 (88) ELT T9], may be deemed to be modified accordingly so far as it relates to determination of cost of production for captively consumed goods. 5. This Circular may be brought to the notice of the field formations. 6. Suitable Trade Notices may be issued for the benefit of the Trade. 7. Hindi version will follow. 8. Receipt of these instructions may be acknowledged." In view of the above, the Circular clarified the position that the cost of production of captively consumed goods will be done strictly in accordance with CAS-4. Admittedly, in this case also, the appellant has adopted the above said Circular and was paying duty a....
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....ciated in the judgment of the High Court of Calcutta in the case o Birla Jute and industries Ltd. v. Assistant Collector-1992 (57) ELT. 674 has been approved by the Apex Court in the case of Eswaran & Sons Engineers Ltd 6. We may also note that the judgment of the Apex Court in the case of Eswaran & Sons Engineers Ltd. does not support the revenue's contention that assessments for each period should be decided in terms of the Circular of the relevant period without considering the modifications subsequently made in them. The issue considered in the Eswaran & Sons Engineers Ltd. judgment war altogether different. It was as to what was the effect of a subsequent circular on a demand which had been raised prior to the issue of a circular. The Court observed as under: "13. Under Section 378 of the Act, the Board is empowered to issue instructions to Central Excise Officers, for the purpose of uniformity in the classification of excisable goods, which instructions, are required to be followed by such officers. However, under proviso (a) to Section 37B an exception is made. The said proviso states that the said Instructions, orders or directions cannot make any Cent....
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....w of what is stated above, all the appeals are allowed by way of remand with the direction to the original authorities to decide valuation in terms of the Circular No. 692/8/2003, dated 13-2-2003." The said order of this Tribunal was affirmed by the Hon'ble Apex Court in 2016. 9. The Revenue sought to distinguish the decision of their own case for the earlier period on the ground that in the case of Ispat Industries (supra), the Larger Bench of this Tribunal held that the assessable goods transferred to another plant of the same assesse is required to determine the value as per Rule 4 of the Valuation Rules as the goods were sold to the independent buyers also. 10. We find that said decision is distinguishable on the facts of the case, as in that case, the goods were cleared to another plant not for captive consumption whereas in the case in hand, the goods in question have been cleared to their sister unit for captive consumption in manufacturing of excisable goods i.e. aluminium, which has been cleared by the appellant on payment of duty. Therefore, the said decision cannot be applied to this case. 11. We further take note of the fact that ....