NIRLON LTD.versusCOMMISSIONER OF CENTRAL EXCISE, MUMBAI

                       [2015] 4 S.C.R. 335


                          NIRLON LTD.                                  A

                                 v.
    COMMISSIONER OF CENTRAL EXCISE, MUMBAI

                  (Civil Appeal No. 7642 of 2004)                      B
                         APRIL 23, 2015

            [A.K. SIKRI AND R. F. NARIMAN, JJ.]

     Central Excise Act, 1944 - Valuation of goods -                   C
Assessee selling products manufactured by it - Dispute as
regards valuation of the product which are removed for
captive consumption and to be used at the factory - Price
declaration by assessee showing same price for the goods
- Report by cost accountant that the two goods are different           D
from each other - Issuance of two show cause notices to
assessee demanding differential duty ulr. 6(b)(ii) - Demand
upheld and imposition of penalty - Dismissal of appeal
thereagainst - On appeal, held: Findings of facts by the
authorities below that the two kinds of goods were not                 E
comparable with each other and therefore, the goods which
were removed for captive consumption to be used by the
factory were to be valued u/r. 6(b)(ii) and the price declaration
given by assessee applying r. 6(b)(i) was erroneous -
Assessee had admitted some variations in the two types of              F
goods thus, the opinion of the authorities does not call for
any interference - Further, there was no ma/a fides on the
part of the assessee in filing the declaration ulr. 6(b)(i) in order
to evade the excise duty - When the entire exercise was
revenue neutral, assessee could not have achieved any                  G
purpose to evade the duty- Demand as regards show cause
notice dt 25.02.2000 confirmed and as regards, show cause
notice dt 03.03.2001, part of the demand being beyond
                               335                                     H
336         SUPREME COURT REPORTS                     [2015] 4 S.C.R.


A     limitation set aside - Imposition of penalty also set aside -
      Central Excise Tariff Act - Central Excise Valuation Rules,
      1975 - rr. 6(b)(i) & (ii).

         CIVIL APPELLATE JURISDICTION: Civil Appeal No.
 B    7642 of 2004.

          From the Judgment and Order dated 01.10.2004 of the
      Customs, Excise and Service Tax Appellate Tribunal, West
      Regional Bench at Mumbai in Appeals No. E/3655/2001 -
 C    MUM.

          S. K. Bagaria,AlokYadav, Somnath Shukla, K.AjitSingh,
      Praveen Kumar for the Appellant.

          K. Radhakrishnan, Tara Chandra Sharma, Sunita Rani
 D    Singh, B. K. Prasad, Anil Katiyar for the Respondent.

          The Judgment of the Court was delivered by

            A. K. SIKRI, J. 1.The appellant herein is the manufacturer
 E    of Tyre Cord Yarn (TCY) and Tyre Cord Fabric (TCB) falling
      under Chapter 54 and 59 of the Central Excise Tariff Act
      respectively. The aforesaid goods TCY and TCB are
      manufactured by the appellant at its Goregaon factory. The
      products so manufactured are sold by the appellant at the
 F    factory gate as well as removed for captive consumption to its
      another factory at Tarapur. At Tarapurfactory, the said yc:11n are
      utilised for manufacturing final products.

       2. The dispute has arisen in respect of the valuation of the
 G TCY which are removed for captive consumption and to be
   used at Tarapur factory of the respondent.

           3. The appellant has been filing the price list proforma
      under Section 4(1) of the Central Excise Act, 1944,(hereinafter
 H    referred to as 'Act') declaring the wholesale price of TCY for
      NIRLON LTD. v. COMMISSIONER OF CENTRAL                   337
           EXCISE, MUMBAI [A. K. SIKRI, J.]

such goods by showing the same price at which the goods A
are sold by the appellant at the factory gate to the third parties.
Such price list in Proforma Part I under Section 4 of the Act
was filed on 01.03.1994 and 28.03.1994. It was again filed on
01.03.1998. The price declaration so made was looked into
by the Superintendent of Central Excise and he was not B
satisfied with this declaration as according to him, the price
could not be declared at the same rate at which the goods are
sold by the appellant at the factory gate to others. According
to him, there was a difference between the goods which were
cleared at the factory gate to be sold to the third parties and C
removed for captive consumption by the appellant itself for its
Tarapur factory. This resulted in the appointment of a cost
accountant by the Commi~sioner to go into this issue.

     4. It appears that the cost accountant had given some D
•sport in which he had opined that the two goods are different
from each other and therefore, price declaration which was
filed by the appellant in terms of Section 4(2) of the Act read
with Rule 6(b)(i) of Central Excise Valuation Rules, 1975
(hereinafter referred to as Rules) was incorrect. This led to the E
issuance of two show cause notices to the appellant. First show
cause notice is dated 25.02.2000 covering period from August,
1999 to January, 2000. In this show cause notice, amount of
Rs. 78,20,365/- for the aforesaid period was demanded as F
differential duty under Rule 6(b)(ii) of the aforesaid Rules. The
second show cause notice was issued on 03.03.2001 which
was for the period from February, 1996, to June, 2000. Both
these notices resulted in confirmation of the demands
mentioned in the show cause notices as well as imposition of G
penalties upon the appellant. The appellant filed appeal against
the orders passed by the Commissioner. However, the
Customs, Excise and Service Tax Appellate Tribunal
(hereinafter referred to as 'CESTAT') has dismissed this
appeal by the common judgment dated 01.10.2004. It is H
338         SUPREME COURT REPORTS                   [2015] 4 S.C.'R.


A     against this judgment, present appeal is preferred by the
      appellant.

       5. After going through the material on record as well as
  the orders of the Commissioner and the CE STAT, we find that
s findings of facts are recorded by the authorities below that the
  two kinds of goods were not comparable with each other and
  therefore, the goods which were removed for captive
  consumption to be used by Tarapur Factory were to be valued
  under Rule 6(b)(ii) of the Rllles and the price declaration given
C by the appellant applying Rule 6(b)(i) of the said rules was
  erroneous. We also find that the appellant had even admitted
  some variations in the two types of goods in its reply to the
  show ca1,1se notices itself. In these circumstances, insofar as
  the opinion of the authorities with regard to different nature of
D the goods is concerned, that does not call for any interference
  by this court.

           6. Faced with the aforesaid situation, Mr. S. K. Bagaria,
      learned senior counsel appearing for the appellant, has
E     pressed the issue of limitation. His submission is that the
      second show cause notice dated 03.03.2001 covered the
      period from February, 1996 to June, 2000, and most of this
      period would be time barred if extended period of limitation is
      not invoked in the present case. His argument is that there
 F    was no ma/a fide on the part of the appellant and no intention
      to evade the duty. In order to buttress this submission, the
      learned senior counsel has pointed out the following aspects
      in his favour: -

G          (i) The products sold at the factory gate and the products
      transferred to Tarapur factory were using identical raw
      materials and identical process. For this reason, the appellant
      believed that the products were comparable goods in terms
      of Rule 6(b)(i).
 H
      NIRLON LTD. v. COMMISSIONER OF CENTRAL                         339
           EXCISE, MUMBAI [A. K. SIKRI, J.]

      (ii) Both the goods fall under the same sub-heading of the      A
tariff entry as both are admittedly TCY.

     (iii) The price list which was filed by the appellant in the
year 1994, and thereafter repeatedly, was accepted by the
Central Excise Department after scrutiny and this gave a              B
reasonable impression in the mind of the appellant that the
price declarations filed by the appellant was correct.

     (iv) The appellant could not have taken any undue
advantage, in any case, by filing declaration under Rule 6(b )(i)     c
instead of Rule 6(b )(ii) inasmuch as even if there was higher
duty payable in terms of declaration under Rule 6(b )(ii) of the
Rules, the appellant was entitled to take credit thereof in its
entirety. Therefore, the entire exercise was revenue neutral.
                                                                      D
     (v)ln order to support his submission, it is pointed out that
as. soon as the second show cause notice was issued and the
Revenue wanted the appellant to file price declaration under
Rule 6(b)(ii) the appellant complied therewith and with effect
from 01.04.2000, i.e., immediately after the issuance of the          E
show cause notice dated 25.02.2000, it is paying duty
accordingly and taking credit thereof, as well. This is so
accepted by the Department in the second show cause notice
dated 3.3.2001 itself.
                                                                      F
    7. From the aforesaid circumstances narrated by the
learned senior counsel, we are inclined to accept the
submission of the appellant that there could not have been
any ma/a tides on the part of the appellant in filing the
declaration under Rule 6(b)(i) in order to evade the excise duty. G

    8. We may note that Mr. K. Radhakrishnan, learned senior
counsel appearing for the Revenue, vehemently countered the
aforesaid submission of the appellant and argued that there
was clear intention to evade the excise duty. His submission H
340         SUPREME COURT REPORTS                     [2015] 4 S.C.R.


A  was that the clearance of the goods which were sold at the
   factory gate were totally different as they differed in technical
   specifications from those removed for captive consumption
   which was confirmed by the appellant itself vide its letter dated
   21.02.2000 and this would depict clear intention on the part of
 B the appellant to remove the goods by paying lesser duty.

           9. We have ourselves indicated that the two types of goods
      were different in nature. The question is about the intention,
      namely, whether it was done with bona fide belief or there was
 C    some ma/a fide intentions in doing so. It is here we agree with
      the contention of the learned senior counsel for the appellant,
      in the circumstances which are explained by him and recorded
      above. It is stated at the cost of repetition that when the entire
      exercise was revenue neutral, the appellant could not have
 D    achieved any purpose to evade the duty.

            10. Therefore, it was not permissible forthe respondent
      to invoke the proviso to Section 11A(1) of the Act and apply
      the extended period of limitation. In view thereof, we confirm
 E    the demand insofar as it pertains to show cause notice dated
      25.02.2000. However, as far as show cause notice dated
      03.03.2001 is concerned, the demand from February, 1996
      till February, 2000 would be beyond limitation and that part of
      the demand is hereby set aside. Once we have found that there
 F    was no ma/a fide intention on the part of the appellant, we set
      aside the penalty as well.

          11. The appeal is allowed in part and disposed of in the
      aforesaid terms.
 G
           12. No costs.

      NidhiJain                                    Appeal partly allowed.