M/S Wellknown Polyester Ltd vs Commissioner, Central Excise & Service ...

Appeal No.E/10334/2015 [Arising out of OIO No.DMN-EXCUS-000-COM-019-020-14-15, dt.14.10.2014, passed by Commissioner of Central Excise & Service Tax, Daman]

M/s Wellknown Polyester Ltd. Appellant

Vs

Commissioner, Central Excise & Service Tax, Daman Respondent

Represented by:

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

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

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

3. Whether their Lordships wish to see the fair copy of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision:24.08.2015

Order No. A/11232 / 2015, dt.24.08.2015

Per: P.K. Das

After hearing both the sides and on perusal of the records, we find that the issue involved in this case is as to whether the clearance of POY made by the Appellant to their sister/own unit, by adopting the assessable value available with them in relation to the transaction value adopted for sale to independent buyers, in accordance with Rule 4 of Valuation Rules, 2000, is correct as claimed by them or the said clearances are to be assessed @ 110% of cost of production based on CAS 4 certificates in accordance with Rule 8 of Valuation Rules, 2000 as per the orders of Adjudicating authority.

2. We find that the issue is no more res integra in view of the decision of the Hon'ble Supreme Court, Tribunal and the Larger Bench of the Tribunal. The Tribunal in the case of Steel Complex Ltd Vs CCE, Calicut  2004 (171) ELT 255 (Tri-Bang), on the identical issue, allowed the appeal of the Assessee. The said decision was upheld by the Hon'ble Supreme Court as reported in 2015 (321) ELT A 138 (SC). It has been held that Rule 8 of the Valuation Rules, 2000, which was prevailing at that time, will have no application, where the goods are only partly sold under ex-factory basis and partly cleared for captive consumption. The Hon'ble Gujarat High Court in the case of Commissioner of Central Excise, Bhavnagar Vs Ultratech Cement Pvt. Ltd  2014 (302) ELT 334 (Guj.) dismissed the appeal filed by the Revenue. It has been held that the captive consumption partly and sale to independent buyers partly, value is to be determined under Rule 4 of Central Excise Valuation Rules, 2000 and not under Rule 8 of the said Rules. It has approved the decision of the Larger Bench of the Tribunal in the case of Ispat Industries Ltd Vs CCE Raigad  2007 (309) ELT 185 (Tri-LB). We have also noticed that Rule 8 of the Valuation Rules, 2000 was amended by Notification No.14/2013-CE(NT), dt.22.11.2013. The present case is for the period prior to 22.11.2013.

3. In view of the above, the impugned order cannot be sustained. Accordingly, the impugned order is set aside. The appeal filed by the Appellant is allowed.

(Dictated & Pronounced in Court)

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

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