M.V. Ravindran, Member (J) - (1.) THESE three appeals are directed against OIO No. 11/MP/DAMAN/2006 dated 22.11.2006. As these three appeals are interlinked arising out of the very order in original hence we dispose these by a common order.
(2.) THE relevant facts that arise for consideration are M/s. Magna Laboratories Gujarat Pvt. Ltd., (here in after called main appellant) are in the manufacturing activities of pharmaceutical goods and have a Central Excise registration. Investigation carried out by the officers of the Central Excise Dept. against the main appellant and it was noticed that they were not following the provisions of Central Excise Law as regards valuation of goods manufactured and cleared by them. On conclusion of such investigations, show cause notice was issued directing the main appellant as well as the other appellants to show cause as to why the differential duty, interest thereof, be not demanded and penalties not imposed on the ground that the main appellant had under valued the goods cleared from the factory premises. The appellants herein contested the show cause notice by filing replies and also appeared before adjudicating authority. The adjudicating authority did not agree with the contentions raised by the appellant and confirmed the demands. Aggrieved by such orders, all the three appellants preferred to appear before the tribunal which were heard and disposed of by an order dtd. 3.1.2005, wherein tribunal set aside impugned order and ordered denovo adjudication. The impugned order is passed in the denovo adjudication following direction given by the tribunal in the order dtd. 3.1.2005. Ld Counsel appearing on behalf of all the appellants would take us through the allegations in the show cause notice and findings recorded by the adjudicating authority. It is his submission that the show cause notice alleged that the appellant having manufactured the pharmaceuticals goods for M/s. US Vitamins, should have discharged the duty liability on the value on which M/s. US Vitamins had subsequently sold the goods in the market. He would take us through the said allegations as in Para 28 of the show cause notice. He would also then take us through the findings recorded by the adjudicating authority and submit that the adjudicating authority has accepted the contentions of the appellant that the demand of duty does not sustain on the value on which M/s. US Vitamins has sold in the market. It is his submission that the adjudicating authority having come to such a conclusion, should have dropped the proceedings, instead confirmed the demands on findings which was not alleged in the show cause notice. He would submit that the adjudicating authority has not considered the decision of supreme court in the case of M/s. Champadhani Industries Ltd. : 2009 (241) ELT 481 (SC) and M/s. Bellarpur Industries Ltd. : 2007 (215) ELT. 489 (SC). It is also his submission that the entire adjudication proceedings is served as show cause notice was issued in 2000 and the adjudication took place in 2006. It is his submission that the apex court in the case of M/s. Reckit & Colman of India Ltd. : 1996 (88) ELT 641 (SC) has settled the law, that if revenue has canvassed the allegations which the assessee was enough required to meet, such order is liable to be satisfied.
(3.) LD Dept. representative on the other hand would submit that the appellant herein had paid less duty, by declaring lower price than the price charged from M/s. US Vitamins. It is his submission that M/s. US Vitamins has paid prices as contracted with appellant, alongwith appropriate excise duty. It is his submission that the main appellant herein had valued the products cleared from factory premises at a price lower than the contracted price and showing the sale of the same from non -existing depot. It is his submission that the appellant had collected amount of excise duty by resorting to such under valuation of goods. He would submit that the findings of the adjudicating authority clearly confirm the demands only on the differential value which has not been contracted by the main appellant and has not considered the value of sale of products by M/s. US Vitamins.;