COMMISSIONER OF CENTRAL EXCISE Vs. HIRA INDUSTRIES
LAWS(CE)-2006-9-18
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on September 05,2006

Appellant
VERSUS
Respondents

JUDGEMENT

T.Anjaneyulu, - (1.)HEARD both sides.
(2.)In the instant case, the respondents have cleared the packing material under provision of Sub-rule 4 of Rule 3 Cenvat Credit Rules, 2001/2002. The provision makes clear that when the inputs or capital goods on which Cenvat credit has been taken, are removed as such from the factory, the manufacturer of the final products shall pay an amount equal to the duty of excise which is leviable on such goods at the rate applicable to such goods on the date of such removal and on the value determined for such goods under Sub-section (2) of Section 3 or Section 4 of Section 4A of the Act as the case may be. The respondents have initially mentioned, "For transfer only (no sale)" on the relevant invoices. The Commissioner (Appeals), Mumbai had observed that it will not make any difference in view of the expression "removed, as such from the factory" used in the said Sub-rule, as removal can be for sale or for any other purpose including transfer. There is no dispute that the packing material was obsolete and removed as such from the factory of the appellants. Therefore, the value is required to be determined as provided in the said Sub-rule only. On this ground the impugned order is not sustainable. In view of this, I do not go into the aspect of limitation. The order in original is set aside and the appeal is allowed." Aggrieved by the same, the department is in appeal on the ground that the Commissioner (Appeals) has not decided under which section of the Central Excise Act, 1944, the value should be determined.
The contention of the department as seen from the grounds of appeal is that the goods have been transferred back to the principal manufacturer as such the value should be determined under Sub-section (1)(b) of Section 4 of the Act as done by the Commissioner.

(3.)WHEREAS the contention of the respondents is that the goods were delivered to popular traders on account of M/s. Pidilite Industries Limited which is the principal manufacturer. In this connection, the copies of the invoices are shown to me. The said fact is clear from the invoices produced before me. Further, the assessee have also filed cross objection in support of the impugned order passed by the Commissioner (Appeals) and have contended that the Commissioner (Appeals) has rightly concluded that the goods should be valued in terms Sub-rule (4) of Rule 3 which in turn takes into Section 4(1)(a). Further, without prejudice to other contentions raised in the cross objections, it is submitted that in terms of Second proviso to Section 35B(1), the duty amount involved in this appeal is much less than Rs. 50,000/-, the appeal is not maintainable.


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