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2018-VIL-36-CESTAT-CHE-CE

CENTRAL EXCISE CESTAT Cases

Central Excise – Valuation - the appellant sold some servers directly to the cinema theatres / halls under normal transaction value and in respect of remaining servers the appellant had raised stock transfer invoices - Valuation of servers which were shown as stock transfer to the Head office from where they were dispatched to the customers and in some cases, servers were shown as stock-transferred to Head office but sent directly to the customers - whether the impugned clearances are to be treated as stock-transfer meriting valuation under Rule 8 of the Valuation Rules or otherwise, whether they require to be construed as “sale” as per Rule 4 of the Valuation Rules – HELD – there is definitely transfer of possession of the impugned goods from the appellant to their customers partly by cash and partly by other valuable considerations i.e. right to collect advertisement charges and receipt of “pay per show” amount - The contours of the transaction between the appellant and their customers in respect of the impugned servers therefore satisfy the definition for “sale” under Section 2(h) of the CEA, 1944. This being so, the valuation of such sale of the sold goods will have to be within the parameters of Section 4 of the Act read with Valuation Rules, 2000 - In respect of the impugned stock-transferred servers the adjudicating authority has concluded that the value of goods in question is governed by Rule 4 of the Valuation Rules and held that in respect of the stock-transferred servers, appellants should have determined the assessable value on the basis of Rule 4 and adopted the value available at the nearest point of time of removals of servers on stock transfer basis – there is no infirmity with such a conclusion - notwithstanding the clearances being shown as “stock-transfer” to Head office, this was only a routing on paper only, however in actuality the impugned servers were delivered in the same condition as they were removed - for discharge of Central Excise duty, the removals will in no way be recognizable as ‘stock transfer’ and will necessarily take on the colour of “sale” attracting the manner of valuation as laid down in Rule 4 of the Valuation Rules - the imposition of equal penalty under that Section 11AC is set aside – the appeal is partly allowed

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