Clarification of Doubts under the New Valuation Rules
Central
Excise Circular No. 643 dated 1st July 2002
I
am directed to refer to Board�s letter F. No. 354/34/2000-TRU dated 30th
June 2000 clarifying certain points relating to new valuation provisions made
effective from 1.7.2000.
2.
The Board has received a number of references from the field formations
as well as representations from the trade associations about certain doubts
still persisting in the minds of the field officers. These points of doubts are
being clarified in the Table enclosed.
3.
Field formations may be suitably informed.
4.
Hindi version will follow.
5.
Receipt of this Circular may kindly be acknowledged.
CLARIFICATION
ON POINTS OF DOUBT UNDER THE NEW VALUATION PROVISIONS INTRODUCED W.E.F 1.7.2000
Sl.
No.
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Point
of doubt
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Clarification
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1.
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What
is the scope of the term �greatest aggregate quantity� used in
Rule 2(b) of the central Excise Valuation (Determination of Price of
Excisable Goods) Rules, 2000. The definition does not indicate the time
period over which the quantity is to be computed. Further, it is not clear
whether it refers to the largest quantity sold to any particular assessee
during the period or to the goods sold to the largest number of buyers.
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The
term �greatest aggregate quantity� has been used to define the term
�normal transaction value� used in Rules 7 and 9 of the Central Excise
Valuation (Determination of Price of Excisable Goods) Rule, 2000. Seen in
this context the time period should be taken as the whole day and the
transaction value of the �greatest aggregate quantity� would refer to
the price at which the largest quantity of identical goods are sold on a
particular day, irrespective of the number of buyers. In case the
�normal transaction value� from the depot or other place is not
ascertainable on the day identical goods are being removed from the
factory/ warehouse, the nearest day when clearances of the goods were
affected from the depot or other place should be taken into consideration.
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2.
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Freight
charges: -
(a)
How is the cost of transportation to be deducted in case of vehicles owned
by the manufacturer?
(b)
If manufacturer/ transporters changes cost of transportation both for
outward journey up to the point of delivery and return there from, whether
the cost of transportation for the return journey of the empty truck/
vehicles should be allowed as deduction?
(c)
Whether transit insurance can be allowed as deduction as being part of
transportation cost?
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(a)
In such cases the cost of transportation can be calculated through costing
method following the accepted principles of costing. A cost certificate
from a certificated Cost Accountant/ Chartered Accountant/ Company
Secretary may be accepted. The cost transportation should, however, be
separately shown in the invoice.
(b)
As per Rule 5 of the Valuation Rules the actual cost of transportation
from the place of removal up to the place of delivery is only to be
excluded. If the assessee is recovering an amount from the buyer towards
the cost of return fare of the empty vehicle from the place of delivery,
this amount will not be available as a deduction. If, however, only the
cost of transportation has been indicated in the invoice without any
break-up for the forward and return journey, normally it should be
accepted as the cost of transportation from the place of removal to the
place of delivery.
(c)
Yes, the Apex Court in the case of Bombay Tyres International has held
that the cost of transportation will include the cost of insurance also
during the transportation of the goods. But the transit insurance should
either be shown separately in the invoice or can be included in the
transportation cost shown separately.
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3.
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(a)
Whether abatement of sales tax and other taxes can be allowed based on
average tax actually paid by the assessee as supported by costing
certificate? [Circular No. 20/90 CX 1 dt 30.8.1990]
(b)
As per Board�s Circular No. 2/94-CX.1 dt. 11.1.94 (F. No. 6/20/94-CX.1)
the sales tax set-off available in respect of inputs is to be ignored
while computing the sales tax payable. Whether this is still valid?
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(a)
No. As per definition of �transaction value� taxes are deductible only
on actual basis either paid or payable by the assessee. Attention is
invited to paras 10 and 11 of Board�s letter F. No. 354/ 81/2000-Tru
dated 30.6.2000.
(b)
No. The Circular dated 11th Jan 1994 was based on the
definition of �duty of excise payable� given in explanation to the
erstwhile Sec. 4 (4)(d)(ii). The new sec.4 does not incorporate any such
Explanation. The �transaction value� will exclude the sales tax
actually paid or payable on the goods. Thus, for example, if the effective
sale tax on cum-duty price of Rs. 100 is 4% and the assessee is eligible
for set-off of sales tax of, say, Rs. 10 paid/ suffered on the inputs, the
actual sales tax paid/ payable would be Rs. 40-10 = Rs. 30 and this will
be the amount permissible as deduction �from the transaction value�
and not Rs. 40/-, Attention is also invited to paras 10 and 11 of
Board�s letter F. No. 354/81/2000-TRU dated 30.6.2000.
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4.
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Packing:
(a)
whether cost of secondary packing is to be excluded from the transaction
value?
(b)
How is the cost of reusable containers to be determined for inclusion in
the transaction values?
(c)
Whether rental charges or cost of maintenance of reusable metal containers
like gas cylinders etc. are to be included in the transaction value?
(d)
What about cost of containers supplied by the buyer?
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(a)
No. There is no provision for such a deduction in the concept of
transaction value.
(b)
Normally the cost of reusable containers (glass bottles, crates etc. is
amortized and included in the cost of the product itself. Therefore the
question of adding any further amount towards this account does not arise,
except where Audit of accounts reveals that the cost of the reusable
container has not been amortised and included in the value of the product.
(c)
Yes, since the amount has been charged by reason of, or in connection with
the sale of goods, this amount will be added to the transaction value.
(d)
Since in such cases the price will not be the sole consideration for the
sale, the valuation would be governed by Rule 6 and the cost of such
packing, whether durable or not will be included in the transaction value
of these goods. In respect of packing which can be used repeatedly the
cost will have to be amortized over the life span of the packing material
as is done in the case of dyes, moulds etc. supplied by the buyer.
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5.
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How
will valuation be done in cases of captive consumption (i.e. consumed
within the same factory) including transfer to a sister unit or another
factory of the same company firm for further use in the manufacture of
goods)
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For
captive consumption in one�s own factory, valuation would be done as per
rule 8 of the Valuation Rules i.e. the assessable value will be 115% of
the �Cost of production� of the goods.
If
the same goods are partly sold by the assess and partly consumed captively,
the good sold would be assessed on the basis of �transaction value�
[Provided they meet the conditions of sec. 4(1)(a)] and the goods
captively consumed would be valued as per Rule 8 of the Valuation Rules.
This is because, as per new section 4, transaction value has to be
determined for each removal.
Where
goods are transferred to a sister unit or another unit of the same company
valuation will be done as per the proviso to rule 9.
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6.
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Whether
advertisement and publicity charges borne by the dealers/ buyers are to
excluded from the assessable value
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No.
Ever where the dealing are on principal to principal basis but there is an
agreement either written or oral that the buyer will incur certain
expenditure for advertising the goods will be assessee, the cost of such
advertisement and publicity will be added to the price of the goods to
determine and assessable value. In such cases since price would not be
sole consideration for sale, the transaction value would be covered by
Rule 6 of the Valuation Rules.
As
per definition, �transaction value� has to include the cost which the
buyers incurs, or makes provision for, or on behalf of the assessee, for
advertising or publicity charges.
Court
judgements on this issue under the earlier Section 4, or the Rules made
there under, will not apply w.e.f. 1.7.2000, in view of he definition of
�transaction value�
However,
where the brand name/ copyright owner get his goods manufactured from
outside (in job-work or otherwise), the expenditure incurred by the brand
name/ copyright owner on advertisement and publicity charges, in respect
of the said goods, will not be added to the assessable value, as such
expenditure is not incurred on behalf of the manufacturer (assessee).
[Also refer Board�s Circular 619 /10/2002 CX dt 19.2.2002]
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7.
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What
about the cost of after sales service charges and pre delivery inspection
(PDI) charges, incurred by the dealer during the warranty period?
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Since
these services are provided free by the dealer on behalf of the assessed,
the cost towards this is included in the dealer�s margin (or reimbursed
to him). This is one of the considerations for sale of the goods (motor
vehicles, consumer items etc.) to the dealer and will therefore be
governed by Rule 6 of the Valuation Rules on the same grounds as indicated
in respect of advertisement and Publicity charges. That is, in such cases
the after sales service charges and PDI charges will be included in the
assessable value.
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8.
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Will
delayed payment charges be excluded from the transaction value?
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Yes,
since �transaction value� relates to the price paid or payable for the
goods. In this case the delayed payment charge is nothing but the interest
on the price of the goods, which is not paid during the normal credit
period. However, to be admissible as deduction it should be separately
shown or indicated in the invoice and should be charged over and above the
sale price of the goods. Attention in this regard is invited to Board�s
Circular No. 194/28/96-CX dated 29.3.1996, which is still relevant so far
as this element is concerned. [Also refer to para 8 of Board�s letter F.
No. 354/81/2000-TRU dated 30.6.2000]
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9.
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Is
cash discount an admissible deduction?
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Since
valuation is now based on �transaction value� the cash discount, if
actually passed on to the buyers, will be allowed as deduction, the
transaction being on principal to principal basis.
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10.
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Should
erection, installation and commissioning charges be included in the
assessable value
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If
the final product is not excisable, the question of including these
charges in the assessable value of the product does not arise. As for
example since a Steel Plant, as a whole, is an immovable property and
therefore not excisable, no duty would be payable on the cost of erection,
installation and commissioning of the steel plant. Similarly, if a machine
is cleared from a factory on payment of appropriate duty and later or
taken to the premise of the buyers for installation/ erection and
commissioning into an immovable property, no further duty would be
payable. On the other hand if parts/ components of a generator are brought
to a site and the generator erected/ installed and commissioned at the
site then, the generator being an excisable commodity, the cost of
erection, installed and commissioning charges would be included in its
assessable value. In other words if the expenditure of erection,
installation and commissioning has been incurred to bring into existence
any excisable goods, these charges would be included in the assessable
value of the goods. If these costs are incurred to bring into existence
some immovable property, they will not be included in the assessable value
of such resultant property. [Refer Board�s 37B Order No. 58/1/2002-CX
dt 15.1.2002]
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11.
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How
will valuation be done in cases of job-work?
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Please
also refer to Board�s Circular 619/10/2002-CX dt 19.2.2002. Cost of
transporting the raw materials/ inputs to the premises of the job-worker
will also be added to determine the cost of the raw material/ input.
[1997(071) ECR 381(TRIB)]
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12.
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How
will valuation be done when goods are sold partly to related person and
partly to independent buyers?
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There
is no specific rule covering such a contingency. Transaction value in
respect of sales to unrelated buyers cannot be adopted for sales to
related buyers since as per section 4(1) transaction value is to be
determined for each removal. For sales to unrelated buyers valuation will
be done as per section 4(1) (a) and for sale of the same goods to related
buyers recourse will have to be taken to the residuary rule 11 read with
rule 9 (or 10). Rule 9 cannot be applied in such directly since it covers
only those cases where all the sales are to related buyers only.
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13.
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How
will valuation of samples be done which are distributed free, as part of
marketing strategy, or as gifts or donations?
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Since
the goods are not sold section 4(1)(a) will not apply and recourse will
have to be taken to the Valuation Rules. No specific rule covers such a
contingency. Except rule 8 all the other cover contingencies where sale is
involved in some form or the other. Therefore, the residuary rule 11 will
have to be adopted along with the spirit of rule 8. In other words, the
assessable value would be 115% of the cost of production or manufacture�
of the goods.
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14.
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How
will valuation be done when inputs or capital goods, on which CENVAT
credit has been taken, are removed as such from the factory, under the
erstwhile sub rule (1C) of rule 57AB of the Central Excise Rules, 1944, or
under rule 3(4) of the Cenvat Credit Rules, 2001 or 2002?
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Where
inputs or capital goods, on which credit has been taken, are removed as
such on sale, there should be no problem in ascertaining the transaction
value by application of sec. 4(1)(a) or the Valuation Rule. [Provided
tariff values have not been fixed for the inputs or they are not assessed
under Section 4A on the basis of MRP]
There
may be cases where the inputs or capital goods are removed as such to a
sister unit of the assessee or to another factory of the same company and
where no sale is involved. It may be noticed that sub rule (IC) of Rule
57AB of the erstwhile Central Excise Rules, 1944 and Rule 3(4) of the
Cenvat Credit Rules, 2001 (now 2002), talk of determination of value for
�such goods� and not the �said goods�. Thus if the assessee partly
sells the inputs to independent buyers and partly transfers to its sister
units, the transaction value of �such goods� would be available in the
form of the transaction value of inputs sold to an unrelated buyer (if the
sale price to the unrelated buyer varies over a period of time, the value
nearest to the time of removal should be adopted].
Problems
will, however, arise where the assessee does not sell the inputs/ capitals
goods to any independent buyer and the only removal of such input/ capital
goods, outside the factory, is in the nature of transfer to a sister unit.
In such a case proviso to rule 9 will apply and provisions of rule 8 of
the valuation rules would have to be invoked. However, this would required
determination of the �cost of production or manufacture�, which would
not be possible since the said inputs/ capital goods have been received by
the assess from outside and have not been produced or manufactured in his
factory. Recourse will, therefore, have to be taken to the residuary rule
11 of the valuation rules and the value determined using reasonable means
consistent with the principles and general provisions of the valuation
rules and sub-section (1) of sec. 4 of the Act. In that case it would be
reasonable to adopt the value shown in the invoice on the basis of which
CENVAT credit was taken by the assessee in the first place. In respect of
capital goods adequate depreciation may be given as per the rates fixed in
letter F. No. 495/16/93-Cus VI dated 26.5.93, issued on the customs side.
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