1. The fact of the case is that the respondent M/s. Bharat Sanchar Nigam Ltd. are holding Central Excise Registration for manufacture of excisable goods falling under Tariff Item No. 8517 30 00 of Central Excise Tariff Act, 1985. The goods were cleared to their units/branches located all over India for consumption/use to provide services to their customers, they adopted the valuation i.e. only the cost of production. The case of the department is that as there were no sale it appeared that the value of excisable goods manufactured by the respondent should have been determined as per Section 4(1)(b) of the Central Excise Act, 1944 read with Rule 11 and Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 i.e. by cost construction method. Accordingly the respondent were required to determine the assessable value of the excisable goods at 110% of the cost of production of the said goods. Accordingly they have undervalued the goods, consequently there is a short payment of duty to the tune of Rs. 1,32,86,489/-. The adjudicating authority dropped the proceedings relying on the CESTAT judgment in the respondent's own case reported as B.S.N.L. v. Commissioner of C. Ex., Haldia - 2007 (215) E.L.T. 127 (Tri.-Kolkata) relying upon the decision of Hon'ble Supreme Court in the case of PCC Pole Factory v. Collector of Central Excise : 2003 (158) E.L.T. 429 (S.C.
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), held that for valuation purpose, under Rule 11 of the Central Excise (Valuation) Rules, 2000, addition of 15% was not justified as the impugned goods were not captively consumed for further manufacture or production. The Ld. Commissioner (Appeals) recorded that the judgment of this Tribunal in the aforesaid BSNL case has been accepted by the Commissioner of Central Excise, Haldia. Accordingly, the proceedings initiated in the show cause notice dated 24-4-2008 has been dropped therefore the Revenue is before us. Shri M.R. Melvin, Ld. Superintendent (AR) appearing on behalf of the Revenue reiterating the grounds of appeal submits that the Ld. Commissioner has dropped the proceedings only on the basis of Tribunal's judgment in the appellant's own case reported at 2007 (215) E.L.T. 127 (Tri.-Kolkata). This decision of the Tribunal is only based upon the Hon'ble Supreme Court judgment in the case of PCC Pole Factory (supra) which is on issue of valuation with reference to Rule 6(b) of Central Excise (Valuation) Rules, 1975, whereas the period involved in the present case is covered by the Central Excise (Valuation) Rules, 2000, wherein Rule 8 of the Central Excise (Valuation) Rules clearly prescribed the valuation at the rate of 110% of the cost of production. The provisions of Rule 6(b) was different from the Rule 8 of the Central Excise (Valuation) Rules, which is applicable in the present case. Therefore the Tribunal judgment based on PCC Pole Factory (supra) judgment of the Hon'ble Apex Court is not applicable as the same has not considered Rule 8 independently.
2. Shri M.H. Patil, Ld. Counsel appearing on behalf of the respondent submits that the respondent's own case has already settled by this Tribunal in the case of B.S.N.L. v. Commissioner of C. Ex., Haldia - 2007 (215) E.L.T. 127 (Tri.-Kolkata). This judgment of the Tribunal has been accepted by the Jurisdictional Commissioner. Therefore now the department cannot take contrary stand. He placed reliance on this Tribunal judgment in the case of XEN, Central Workshop, PSEB v. Commr. of C. Ex., Jalandhar : 2014 (308) E.L.T. 133 (Tri.-Del.). He further submits that in a case where the department in the respondent's own case accepted the Tribunal decision of Kolkata Bench thereafter the Revenue cannot take a different stand. In this regard he relied on the following judgments:
(i) Birla Corporation Ltd. v. Commissioner of Central Excise : 2005 (186) E.L.T. 266 (S.C.),
(ii) Daily Thanthi v. Commissioner of Customs, Chennai : 2005 (186) E.L.T. 268 (S.C.),
(iii) Commissioner of C. Ex., Hyderabad v. Novapan Industries Ltd. : 2007 (209) E.L.T. 161 (S.C.),
(iv) Commissioner of C. Ex., Mumbai-V v. Swastik Rayon Processors - 2007 (209) E.L.T. 163 (S.C.),
(v) Jayaswal Neco Ltd. v. Commissioner of Central Excise, Nagpur : 2006 (195) E.L.T. 142 (S.C.),
(vi) Boving Fouress Ltd. v. Commissioner of Central Excise, Chennai : 2006 (202) E.L.T. 389 (S.C.),
(vii) Commissioner of Customs, Cochin v. Atul Commodities Pvt. Ltd. : 2006 (202) E.L.T. 392 (Ker.),
(viii) Commissioner of Central Excise, Mumbai v. Bigen Industries Ltd. - 2006 (197) E.L.T. 305 (S.C.),
(ix) Commissioner of Central Excise, Meerut v. Titawi Sugar Complex : 2003 (152) E.L.T. 21 (S.C.).
3. We have carefully considered the submissions made by both the sides. As regard the issue raised by the Ld. Counsel that once the Revenue accepted the BSNL's Tribunal decision it is not allowed for them to raise the question on the same issue. We find that the issue involved is a valuation of excisable goods which is neat question of law, question of law can be raised at any stage when the matter is before the Tribunal. The Tribunal can very well decide the matter independently irrespective whether the earlier judgment on the same issue has been accepted by the department. Therefore we do not agree at this stage, the issue cannot be re-decided on its merit. Now we take up the matter to decide on merit. We find that in the present case for the purpose of valuation, Central Excise (Valuation) Rules, 2000 is applicable. As per the fact of the present case, the goods were not sold by the appellant but provided to the customer for use. The question arises in such nature of transaction, what valuation should be arrived at. Obviously Section 4(1)(a) shall not apply therefore the recourse to be made to Section 4(1)(b) and Rules made thereunder. If we see the Rules sequentially we find that any of the Rule from Rules 1 to 10 are not directly applicable to the nature of transaction in question, therefore the recourse has to be made from Rule 11 of the Central Excise (Valuation) Rules, 2000 which reads as under:
"Rule 11. If the value of any excisable goods cannot be determined under the foregoing rules, the value shall be determined using reasonable means consistent with the principles and general provisions of these rules and sub-section (1) of Section 4 of the Act".
On plain reading of the above Rule 11, it can be seen that even though the Rules 1 to 10 do not apply but the valuation can be made by adopting the suitable Rule in the Rules 1 to 10. In case of removal other than the sale of the goods the appropriate Rule is Rule 8 which can be applied, Rule 8 reads as under:
"Rule 8. Where the excisable goods are not sold by the assessee but are used for consumption by him or on his behalf in the production or manufacture of other articles, the value shall be one hundred and ten per cent of the cost of production or manufacture of such goods."
As per reading of the above Rule 8 of the Central Excise (Valuation) Rules, it is seen that even though the goods are not used by the respondent or on their behalf but by virtue of Rule 11 of the Central Excise (Valuation) Rules, the most appropriate Rule is Rule 8. Therefore in accordance with Rule 8 of Valuation should be 110% of the 'cost of production'. The Commissioner (Appeals) decided the matter solely on the basis of Tribunal's order in the respondent's case reported in 2007 (215) E.L.T. 127 (Tri.-Kolkata). The relevant order portion is reproduced below:
"Heard both sides. Shri N.C. Roychaudhary, Ld. Sr. advocate appearing for M/s. BSNL states that w.e.f. 1-10-2000, the Department of Telephones was corporatised to form the present appellant company M/s. BSNL. Prior to that date, the goods manufactured by the Department of Telephones was exempt from Excise duty. In between, there was confusion regarding excisability of the goods manufactured by M/s. BSNL. However, the duty is being paid w.e.f. 1-10-2000 and there is no contest regarding the dutiability of the products thereafter.
2. Shri Roychaudhary, however, contests that portion of the order which determines the value of the impugned goods by adding 15% under Rule 8 of the Central Excise (Valuation) Rules, 2000. He argues that the impugned goods are not consumed in the manufacture or production of any other items, but are merely supplied for use as such without any further manufacture by M/s. BSNL themselves. He also cites the decision of the Hon'ble Supreme Court in the case of PCC Pole Factory v. Collector of Central Excise reported in : 2003 (158) E.L.T. 429 (S.C.) in which, in a similar case where PCC Poles were used by the Electricity Boards for laying electrical lines, it was ordered to value such poles without adding 10% to the cost.
3. After hearing both sides and perusal of the case records and the cited decision, we are of the view that the present case of the appellants is similar to the one decided by the Hon'ble Supreme Court and hence applying the ratio of the said case, we hold that for valuation purposes under Rule 11 of the Central Excise (Valuation) Rules, 2000, addition of 15% is not justified as the impugned goods are not captively consumed for further manufacture/production. Accordingly, we set aside the impugned order to the extent appealed against and remand the matter to the original authority for requantifying the duty amount. The appellants shall be eligible for consequential refund, if any.
4. As regards the penalty, considering the facts and circumstances of the case and that the period relates to immediately after corporatization of the Department of Telephones to M/s. BSNL and the prevailing uncertainty in the matter of levy and demand of duty during the interim period and since there is also no suppression of facts, we set aside the penalty imposed on the appellants. The appeal is allowed in the above terms."
From the above order, it can be seen that it is based only on Hon'ble Apex Court judgment in the case of PCC Pole Factory v. Collector of Central Excise : 2003 (158) E.L.T. 429 (S.C.) and no independent finding on the valuation provision was given. The judgment in the case of PCC Pole Factory (supra) is reproduced below:
"The appellant is a manufacturer of PCC Poles which are used by the Electricity Board for the purposes of laying electric lines and transmission of electric energy. The Department being of the view that there is no captive consumption in terms of Valuation Rules held that 10 per cent profit will have to be added in finding out the value of these poles and not the actual value disclosed by them. The appellant having lost before the authorities, carried the matter to the Tribunal. The Tribunal upheld the orders made by the authorities and took the view that "PCC poles are marketable and where the work is done by job work, there may be some margin of profit in such activity" forgetting the fact that in the present case Electricity Board itself was carrying on that job and has not assigned the job to any other person who can gain such profit and no business was carried on by the Electricity Board after manufacturing the poles and selling them out or dealing out with any other person. On the other hand, the poles were used for drawing electric lines over them for purpose of transmission of electricity.
2. In this view of the matter, we think the order of the Tribunal cannot be sustained. The order made by the Tribunal is, therefore, set aside and the enhancement to the extent of 10 per cent is deleted.
3. The appeal is allowed accordingly. Each party shall bear its own costs."
The above judgment was passed on the issue of Valuation under Rule 6(b) of erstwhile Central Excise (Valuation) Rules, 1975 which reads as under:
"Where the excisable goods are not sold by the assessee but are used or consumed by him or on his behalf in the production or manufacture of other articles, the value shall be based-
(i) On the value of the comparable goods produced or manufactured by the assessee or by any other assessee:
(ii) If the value cannot be determined under sub-clause (i), on the cost of production or manufacture including profit, if any which the assessee would have normally earned on the sale of such goods;", suffix
From the above Rule, it can be seen that it provides for addition of profit but the word suffix is if any that means the profit can be added as per Rule 6(b) only when the assessee is making profit. As per Rule 8 the valuation should be done on 110% of the cost of production irrespective of whether the assessee is making profit or not, therefore there is departure from Rule 6(b) of Central Excise Rules, 1975 and introduction of Rule 8 of Central Excise Rules, 2000. In terms of Section 4(1)(b) and Valuation Rules, 2000 there is no provision where only cost of product can be taken as value of the goods when supply is other than sale, the cost of production alone cannot be taken as value of excisable goods. Therefore the only option of valuation is left with Rule 8 and in accordance with Rule 11 the appropriate Rule 8 should be applied. Since both the Tribunal judgment in the case of appellant as well as XEN, Central Workshop, PSEB (supra) are based on PCC Pole Factory (supra) the matter needs to be referred to the Larger Bench to resolve the following question:
"Whether during the period after 1st July, 2000 the valuation of the goods supplied which does not involve as sale should be done under Rule 8 of Central Excise Rules, 2000 or on the basis of cost of production without adding any notional profit."
Registry is directed to place this matter before the Hon'ble President of this Tribunal for constituting the Larger Bench