COMMISSIONER OF CENTRAL EXCISE, KOLKATA-IV Vs. KESORAM RAYON
LAWS(CE)-2015-2-24
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on February 02,2015

Commissioner Of Central Excise, Kolkata -Iv Appellant
VERSUS
Kesoram Rayon Respondents

JUDGEMENT

D.M. Misra, Member (J) - (1.)THIS Appeal is filed against Order -in -Original No. 110 -113/Commissioner/CE/Kol -IV/2007 dated 29.05.2007 passed by the Commissioner of Central Excise, Kolkata -IV.
(2.)BRIEFLY stated the facts of the case are that the respondent are inter alia, engaged in the manufacture of Viscose Rayon Filament Yarn, falling under chapter sub -heading numbers 5403.32 of CEATA, 1985. During the relevant period i.e. 01.07.2000 to 31.05.2004 & January 2005 to Jan. 2006, they had manufactured & cleared the said goods from their factory to various depots resorting to provisional assessment, from where ultimately such goods were sold to the customers. It is alleged that on account of incorrect determination of assessable value under Section 4 of Central Excise Act, 1944 read with Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, on finalization of provisional assessment, there was short payment of duty. Fourteen periodical show cause cum demand notices were issued to the respondent alleging short payment of a total duty of Rs. 2,56,22,503/ - during the said period from 01.07.2000 to 31.05.2004 & Jan. 2005 to Jan. 2006. The Ld. Commissioner on adjudication dropped the demand notices and directed the jurisdictional adjudicating authority to finalise provisional assessment for the entire period on the basis of the observation recorded in the order. Aggrieved by the said order, the Revenue is in Appeal.
The Ld. A.R. for the Revenue has submitted that the Ld. Commissioner has failed to apply the provisions of Rule 7 of Central Excise Valuation Rules, 2000 inasmuch as while determining the nearest time of sale of good from the depots to the time of removal of goods from the factory to depots, he has accepted the selling price of the goods, after the date & time of removal of the goods under assessment from the factory to the depots. It is his submission that the nearest time of sale of goods from the depots for the purpose of Rule 7 of Central Excise Valuation Rules, 2000 should be prior to the date & time of removal/clearance of the goods from the factory to depots. Therefore, the order is bad in law.

(3.)DR . Samir Chakraborty, Ld. Sr. Advocate assisted by Shri Arnab Chakraborty, Ld. Advocate for the respondent submitted that during the relevant period the respondent had cleared Viscose Rayon Filament Yarn to their depots spread over different parts of the country and paid the duty on clearance of such goods by determining the assessable value provisionally, following Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. Later, the respondent has adopted the depots selling price nearest to the time of removal of the goods from the factory and paid the differential duty accordingly. He submits that the department has accepted the depot sale price as on the date of removal or before the date of removal from the factory to depots. However, demand notices were issued where the nearest time of sale was considered for determination of assessable value, after the date & time of removal of the goods under assessment from the factory to depots. The Ld. Advocate citing an example has submitted that while clearing the goods from factory to the depot, on 01.07.2002 if they have adopted the price at which such goods were sold from depot on 01.07.2002 or if there was no sale on that day, the sale price as on 30.06.2002, no objection had been raised, but if the sale price as on 05.07.2002 was adopted, as there was no sale nearest to that date, the sale price was rejected observing that it was after the date of removal of the goods from the factory. He submits that this issue has been settled by this Tribunal in the case of S.C. Enviro Agro India Pvt. Ltd. vs. CCE, Thane -II - : 2013 (298) ELT 257 (Tri. -Mumbai).
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