The court addressed the classification and valuation of captively consumed goods, including the applicability of principles laid down in CAS-4 and the determination of notional profit.

ORDER :

1. Revenue is in appeal against Final Orders Nos. 554 and 555 of 2005 dated 30-3-2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Chennai (for short 'the Tribunal') in Appeals Nos. E/358 of 1999 and E/149 of 2001.

2. Before the Tribunal three points were argued, namely, (i) classification; (ii) applicability of the principles laid down in CAS-4 while determining the value of captively consumed goods; and (iii) percentage of profit that should be added while computing the value under Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975 (for short ?the Rules?). The third point was sub-divided into two parts viz. (a) as to whether the department would add over all profits earned by the group Company when it comes to determining the profit earned by the unit in question; and/or (b) the profit relating to the product in question, could be added as notional profit.

3. On the question of classification, Tribunal decided against the assessee and the said decision has not been challenged by the assessee and, has therefore, attained finality. The finding recorded by the Tribunal regarding classification is no longer in issue.

4. Insofar as the applicability of principles laid down in CAS-4 is concerned, the senior departmental representative appearing before the Tribunal had conceded that the principles laid down in CAS-4 while determining the value of the captively consumed goods are applicable and accordingly prayed that the matter be remitted back to the original authority with a direction that costing principle laid down in CAS-4 should be applied while arriving at the value of the captively consumed goods. The Tribunal on the concession made, remitted the matter to the original authority to determine the value in accordance with CAS-4 keeping in view the law laid down in the judgment rendered by the Bangalore Bench of the Tribunal in assessee's own case i.e. ITC Ltd. v. CCE, (2004) 175 ELT 860 (CESTAT).

5. Insofar as the third point is concerned, the Tribunal relying upon the decision in ITC Ltd. case, (2004) 175 ELT 860 (CESTAT) held that overall profit earned by the group as a whole cannot be taken for the purposes of determining the quantum of profit. The notional profit could be determined only after taking into consideration the product in question. The Tribunal determined the notional profit proposed to be added at 10% of the cost of product. The figure of 10% has been arrived at on the basis of notices issued to the assessee by the department regarding its monger unit in which it was proposed to add 10% as the cost of product to be the notional profit.

6. Admittedly, against the order passed by the Tribunal in ITC Ltd. case, (2004) 175 ELT 860 (CESTAT) no appeal has been preferred by the Revenue and in view of the settled law, the same has attained finality. Learned Senior Counsel appearing for the Revenue does not challenge the findings recorded by the Tribunal on the third point. In view of the concession made by the learned counsel for the Revenue, the findings recorded by the Tribunal on the same are confirmed.

7. So far as the second point is concerned, while not disputing the fact that such a concession was made on behalf of the Revenue, the learned Senior Counsel appearing for the Revenue strenuously contended that the concession made by the senior departmental representative before the Tribunal to the effect that the principles laid down in CAS-4 are applicable for determination of value of captively consumed goods on or after 1-7-2000, is against the express provisions of law and that such a concession could not be made. This point has not been taken by the appellants in their appeal. In the absence of any challenge to this effect in the appeal, we decline the permission to the counsel for the appellant to raise this point before us for the first time. Concession made on behalf of the Revenue before the Tribunal cannot be allowed to be retracted before us especially