TATA LIBERT LIMITED Vs. CCE

JUDGEMENT

(1.) THE dispute raised in this appeal is about the valuation of PCS assemblies manufactured and cleared by the assessee to their depots. The period of dispute is June 1996 to January 2000. The original valuation of these PCBs was carried out under Rule 6(b)(ii) of Central Excise Valuation Rules i.e. based on the cost of production of the goods. Subsequently, show cause notice dated 12.4.2000 was issued alleging that comparable goods produced by the assessee were being sold on ex -factory basis and valuation of the PCBs removed to the depots were required to be carried out based on the value of such comparable goods in terms of Rule 6(b)(i) of the said Valuation Rules. The notice held that revision of the assessment based on the comparable value indicated a short levy of Central Excise duty amounting more than Rs. 63 lakhs. The show cause notice, accordingly, proposed recovery of the duty short levied as well as imposition of penalty on the appellant. The notice also alleged that as the short levy had taken place on account of suppression of facts by the appellant with intent to evade payment of duty, short levy is liable to be recovered for the extended period of five years as contemplated in the proviso to Section 11A of the Central Excise Act. The appellants resisted the proposals made in the show cause notice during the adjudication proceedings; but did not succeed. The Commissioner of Central Excise, Mumbai -6 upheld the allegations vide his order in original No. 10 -18/01/Commr -VI dated 16.5.2001. That order has occasioned this appeal. The appellants have contested the duty demand on merits as well as on the ground of time bar.

(2.) ON merits the contention of the appellant is that the comparison made in the adjudication proceedings between the two sets of PCBs is not correct as the PCBs removed to the depots were different from PCBs sold ex -factory to various buyers. The point being made is that the PCBs removed to depots are Generic in kind while the PCBs sold ex -factory are Customised PCBs. It is pointed out that Generic PCBs are required to be worked upon in order to make them customized so that they are suitable for use in specific UPS systems. As against this Customised PCBs have already been worked upon and made ready for fitment in the machinery already sold. During the hearing of the case, learned Counsel pointed out that several processes are required to be carried out on Generic PCBs for the purpose of Customisation,, the following being the main processes:

(3.) THE learned Counsel also pointed out that the appellants had adduced technical opinion in the nature of affidavit of expert in support of their contention that Generic PCBs and customized PCBs are different goods and cannot be compared. He also pointed out that detailed information about each process required to be carried out during customizing had been filed alongwith the reply to the show cause notice. The learned Counsel also pointed out that the fact that customized PCBs are different from Generic PCBs has been noticed by the adjudicating authority also.