M/S. Wellknown Pollyester Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIO-DMN-EXCUS-000-COM-0039-14-15 dated 19.02.2015, passed by Commissioner Central Excise & Service Tax, Daman)

M/s. Wellknown Pollyester Limited : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Daman : Respondent (s)

Represented by :

For Appellant (s) : Shri S.J. Vyas, Advocate For Respondent (s) : Shri Alok Srivastava, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)

Date of Hearing / Decision : 28.10.2015

ORDER No. A/11568-11569/2015 Dated 28.10.2015

Per : Mr. P.K. Das;

The applicant filed these applications for early hearing of the appeals. The learned Advocate submits that the issue involved in these appeals is covered by the decision of the Tribunal in the appellants own case. Hence, the appeals are taken up for hearing upon the consent of the parties.

2. After hearing both the sides and on perusal of the records, we find that the appellants were engaged in the manufacture of Polyester Oriented Yarn (POY), Polyester chips and Fully Drawn Yarn (FDY), classifiable under Chapters 54 and 34 of the Schedule to Central Excise Tariff Act, 1985. The dispute relates to valuation of the goods. The adjudicating authority confirmed the demand of duty on the goods transferred to their sister units/ own units by adopting assessable value under Rule 8 of the Valuation Rules, 2000 on CAS 4 certificate. According to the appellants, they are also selling the same goods to the independent buyers and therefore, the value would be determined on transaction value as held by the Larger Bench of the Tribunal in the case of Ispat Industries Limited vs. CCE, Raigad  2007 (209) ELT 185 (Tri. LB). The learned Advocate submits that, in the appellants own case, for the earlier period, the Tribunal vide Order No. A/11232/2015 dated 24.08.2015 allowed the appeal.

3. On the other hand, the learned Authorised Representative for the Revenue reiterates the findings of the adjudicating authority. He submits that there is no finding of the adjudicating authority on the sell of the goods to the independent buyers and therefore, the said case law would not be applicable in the present case.

4. We find from the impugned order that Shri Yadagiri R. Avadhoot, Manager-cum-Authorised Signatory of the appellant Company, in his statement dated 24.02.2014 stated that they have cleared the goods to the independent buyers also they have transferred the goods on payment of duty to their sister units on the transaction value of the independent buyer. It is seen that the appellant also placed the decision of the Larger Bench before the adjudicating authority which is duly recorded in the adjudication order. But, the adjudicating authority had not given any finding on the facts and law of the case. So, it is difficult to proceed in the matter as there is no clarity in the findings of the adjudicating authority. We are of the considered view that the matter is required to be remanded back to the adjudicating authority to decide afresh. At this stage, the learned Advocate submits that the part of the demand is after the amendment of Rule 8 of the Valuation Rules and therefore, they are liable to pay duty after the amendment. As we are remanding the matter to the adjudicating authority, he will consider the submission of the learned Advocate.

5. In view of the above discussions, we set-aside the impugned order. The matter is remanded to the adjudicating authority to decide afresh after considering the facts and law of the case including the decision of Tribunal in the appellants own case. Both the appeals are allowed by way of remand. Applications for early hearing are dismissed as infructuous.

(Dictated and pronounced in the open Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial) ..KL

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