TaxTMI 
TaxTMI 
2026 (2) TMI 227
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....lphuric Acid by determining value at the rate of 2103/- Per MT whereas cost of production as per CAS-4 Certificate came to Rs. 2721/- Per MT. By adopting value @ 110% of the cost of production, the assessable value turns out to be Rs. 2993/- Per MT and therefore, the appellant was liable to pay differential duty of Rs. 3,37,817/- against which they had paid duty of only Rs. 3,19,112/- in the month of November, 2016. 1.1 The issue was decided by the Assistant Commissioner who confirmed demand of Rs. 3,37,817/- upon the appellant along with interest and equal penalty. The appellant filed an appeal before the Commissioner (Appeals) who upheld the order of the lower authority by observing that the show cause notice has been issued in the normal period but mens rea is available in this case to evade payment of duty. Hence, appellant filed appeal before this Tribunal. 2. However, during hearing, none appeared on behalf of the appellant. Learned Counsel for the appellant M/s. Willingdon & Associates vide their submissions dated 13th January, 2026 submitted that the issue has already been decided by this Tribunal in their own case vide Final Order No. 11383/2025 dated 03.12.2025 and ....
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....e of Principal Commissioner of CGST & C. Ex., Headquarters Bhopal vs. Godrej Consumer products Limited (supra) has discussed this issue in detail. It held that overall duty liability/ short payment should be arrived at after considering the duty already paid during that year on such goods. It also held that adjustment of short/ excess paid duty is permissible against demand determined based on annual costing. It considered the decision of Tribunal in the case of Essar Steel India Limited (supra) and Jindal Steel and Power Limited (supra). The relevant findings in para 7, 11 and 13 are reproduced below:- "7. The Tribunal while relying on the decision in Jindal Steel & Power Ltd. v. Raipur-1 - 2016 (342) E.L.T. 253 (Tri. - Delhi) and Essar Steel India Ltd. v. CCE, Raipur - 2017 (345) E.L.T. 139 reversed the order, holding : "7. We have considered the submissions made by both sides. The goods have been cleared by the appellant to their own sister unit located in tax exempted areas. Consequently, the appellant is require to pay excise duty on goods so cleared. The basis of valuation is also required to be done in terms of Rule 8 of the Central Excise Valuation Rules, ....
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....ransaction value for each clearance. They have considered a period of many months and worked out the costing, in terms of CAS-4 for that period and paid duty. Thereafter, they revised said costing when there are changes in raw material cost. That being the case, we find that the reliance placed by the appellant on the principle that time of removal is relevant and, hence, annual costing is not tenable, is unsustainable. The fact remains that while the duty liability has to be discharged at the time of removal of excisable goods in a situation where there is no sale transaction and known value, the deemed transaction value has to be constructed based on costing method which necessarily will involve an averaging of cost for a period, considering all the parameters. It is neither the case of the appellant nor there is such an approved standard for arriving at cost of excisable goods for each individual clearance. 7. Now, the question remains when at the time of each clearance of excisable goods for captive consumption the exact transaction value could not be arrived at the relevant time the duty has to be paid on a provisional basis and upon arriving at the costing applying C....
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....a is considered for costing, for total duty liability only months when short payment was noticed were considered. In other words when CAS-4 based annual costing formed basis for arriving transaction value, the overall duty liability/short payment should be arrived at after considering duty already paid during that year on such goods. We find the reasoning given by the Original Authority against adjustment of already paid duty as untenable. Section 11B has no application in such situation, when the appellants duty liability is determined on annual CAS-4, the duty already paid during said period has to be adjusted. The question of unjust enrichment has no relevance here. There is no refund considered here. The point that the duty paid in excess in certain months has been availed as credit by sister unit hence, cannot be adjusted towards short payment also not tenable. The demand arose based on annual costing. Such cost price in terms of Rule 8 will apply to all clearances made during the relevant year. Admittedly, duty already discharged has to be considered for arriving at overall short payment. Selectively applying the said cost price only for months when the clearances were below ....
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.... in respect of valuation on the basis of CAS 4. It held that :- "Heard both sides at length. The issue relates to valuation of the impugned goods cleared from one factory of the appellants to another factory under the new Valuation Rules brought into effect from 1-7-2000. The appellants continued to clear the impugned goods as per the values determined under the old rules but under intimation to the department. Subsequently, they re-determined the value for the consignments cleared after 1-7-2000 and paid differential duty of Rs. 1,18,25,451/- the Cenvat credit of which they have taken at their recipient factory. Such payment was made before issue of any show cause notice and within six months of the clearance in respect of all the consignments. The fresh valuation done under the new rules has not been disputed by the department. He demand for Rs. 26,63,851/-, which is the subject matter of the impugned orders passed by the lower authorities, is attributable to the fact that in respect of some consignments the duty was paid on a higher value compared to the re determined value and hence the appellants, according to the Department, should have asked for a refund cl....