Whether concept of transaction value introduced in 2000 be applied for prior periods?

PJ/Case Laws/2012-13/1360

Case:- C.C.E., CHANDIGARH Vs. SIEL CHEMICAL COMPLEX

Citation:- 2012 (286) E.L.T. 263 (Tri.-Del.)

Brief Facts:-The respondents manufacture liquid chlorine gas. On visit of the respondent's factory by preventive staff of the Excise Department and subsequent perusal of the records, it was revealed that, the respondents had been offering discount to different buyers in comparison to some other. On investigation, it was revealed that there was difference between the assessable value of the chlorine gas sold by the respondents to other buyers inasmuch as that the other buyers were supplied the gas in the cylinders of the manufacturer whereas discount was given to those buyers who were providing their own cylinders for filling gas. Consequently, show cause notice came to be issued to the respondents which were contested by the respondents. The Additional Commissioner had confirmed the demand and ordered recovery along with interest and equal amount of penalty. The Respondent filed appeal against the said order before Commissioner (Appeals). The Commissioner (Appeals) set aside the order. Aggrieved by the said Order-in-appeal revenue filed appeal before Tribunal.

Appellant’s Contention:- The Appellant Placing reliance in the decisions in the matter of Commissioner of Central Excise, Ghaziabad v. Modi Gas & Chemicals Ltd.reported in 2010 (261) E.L.T. 1154 (Tri.-Del.), Kota Oxygen (P) Ltd. v. C.C.E., Jaipurreported in 2000 (121) E.L.T. 369 (Tribunal) and 2001 (128) E.L.T. A68 (S.C.), that the respondents were not entitled to two different measures in relation to valuation of the goods supplied to the buyers and the law on this point is being well settled by the said decisions, the Commissioner (Appeals) erred in setting aside the order passed by the adjudicating authority.

Respondent’s Contention:-The respondents on the other hand placing reliance in the matter of C.C.E. v. Indian Oxygen Ltd. reported in 1988 (36) E.L.T. 730 (S.C.) submitted that inview of the decision in Modi Gas & Chemicals Ltd.case could be said to be applicable only from 1st July 2000 onwards in view of the amendment brought about to Section 4 particularly in relation to the meaning of the expression "transaction value" but as _.far as the case prior to 1st July 2000 is concerned, the same is fully covered by the decision of the Supreme Court in Indian Oxygen Gas caseand therefore, to that extent, no fault can be found with the view taken by the Commissioner (Appeals) under the impugned order.

Reasoning of Judgment:-The Tribunal heard both sides and considered that the Tribunal in Modi Gas & Chemicals Ltd.case after taking into consideration the concept of transaction value and Rule 6 of the Central Excise Valuation Rules (Determination of Price of Excisable Goods) Rules, 2000 held that the valuation of the goods cannot be without taking into consideration the concept of transaction value as introduced under Section 4 of the Central Excise Act, 1944. Applying the same rule to the facts of the case, the Department is justified in contending that the valuation of the product supplied to the buyers who were providing their own cylinders could not have been different from the one in the case where the gas was supplied in cylinders of the manufacturers themselves and hence the deduction on account of cylinders having been brought by the buyers was not permissible. To that extent, certainly, the impugned order cannot be said to have been in consonance with the provision of law. However, this would apply as rightly pointed out by the appellants from 1st July, 2000 onwards. As far as situation prior thereto is concerned, it was fully covered by the decision of the Supreme Court in Indian Oxygen Ltd.case.

The Tribunal also finds that the decision in Kota Oxygen (P) Ltd.has no application to the facts of the case. In that case, the issue related to collection of rental charges in respect of cylinders wherein gas was filled for supply to the buyers relating to the period prior to 1st July, 2000. The decision will not apply to the facts of the case in hand. For the reasons stated above, therefore, the impugned order to that extent it applies from 1st July 2000 cannot be sustained and is liable to be set aside and the adjudicating authority is directed to recalculate the amount of duty and consequential obligation bearing in mind the liability in that regard starting from 1st July 2000 onwards and not prior to that. Accordingly, the appeal is partly allowed. The impugned order to that extent it relates to the period from 1st July 2000 is set aside and the order of the adjudicating authority in that regard is restored for the said period. The adjudicating authority to recalculate the duty liability and penalty accordingly and intimate the same to the assessee.

Decision:-Appeal accordingly stands disposed of.

Comment:- The analogy drawn from this case is that a provision can be made applicable from the date of its coming into force unless given retrospective effect by the law. In this case also, the concept of transaction value being introduced from 1^st July, 2000 could not be applied for prior periods and so the appeal has been partly allowed for the prior period.

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PJ/Case Laws/2012-13/1360

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