M/s General Engineering Works, Bharatpur v. Commissioner of Central Excise, Jaipur (SC) BS197883

M/s General Engineering Works, Bharatpur v. Commissioner of Central Excise, Jaipur (SC) BS197883 SUPREME COURT OF INDIA

Before:- S. N. Variava, AR. Lakshmanan and S. H. Kapadia, JJ.

Civil Appeal Nos. 3852-3855 of 1999. D/d. 10.3.2005.

M/s General Engineering Works, Bharatpur - Appellants

Versus

Commissioner of Central Excise, Jaipur - Respondent

A. Central Excise Act, 1944, Section 4 - Valuation of scrap - Inclusion of in value of raw material - Scope of - Burden of proof of depression of conversion charges - Determination of - Computation of value of points and crossing which are manufactured by appellant - Permissibility of inclusion - Held that the value of scrap would be included in the value of points and crossings only where it is shown that conversion charges get depressed by the fact that processor is allowed to keep and sell the scrap - If conversion charges not depressed or if the scrap/waste is returned then in such case their value will not get added - Burden to prove would be on revenue department that the price is so depressed - On facts, contract entered between parties, clearly indicates that the price (conversion charges) have been worked out on the basis that wastage of 5% would be available to the Appellants - Price indicates, to have been affected by the sale of scrap - Tribunal is, therefore, justified in holding that the value of scrap sold has to be taken into account in computing value of points and crossings.

[Paras 5 and 7]

B. Central Excise Act, 1944, Section 4 - Valuation - Inclusion of in value of raw material scope - Effect of - Liability of payment of excise duty on scrap and element of job work - Value of points and crossing which are manufactured by appellant on job work basis on behalf of Railway - Value of scrap sold by appellant - Inclusion in value of raw material - Payment of excise on scrap - Effect of - Held that element of job work charges, separate element from the value material - If it is shown that the job work charges or conversion charges get reduced then scrap value has got to be included in the value of conversion charges - Further that even if excise is paid on scrap it would have no bearing on the computation of the value of the points and the crossings.

[Para 8]

Cases Referred :-

Ujagar Prints v. Union of India, 1989 (39) E.L.T. 493.

Hindustan Engineering & Industries Limited v. C.C.E., Calcutta-I, 2002 (144) ELT 418 (Tri. Kolkata).

Jay Engineering Works Limited v. Commissioner of C. Ex., Hyderabad, 1997 (93) ELT 492 (Tribunal).

Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd., 2002 (3) SCC 547.

ORDER

1. These Appeals are filed against the Judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (in short "CEGAT"), New Delhi dated 21st January, 1999.

2. The brief facts are that the Appellants manufacture, on behalf of the Railways, points and crossings. The points and crossings are manufactured on job work basis. The raw material is supplied by the Railways. After manufacture the points and crossings are handed over to the Railways. In the process of manufacturing points and crossings waste/scrap to the extent of 5% arises. The waste/scrap is not returned to the Railways but is sold off by the Appellants.

3. The question for consideration is whether in computing the value of the points and crossings, the value of the scrap has got to be added. This Court has, in the case of Ujagar Prints v. Union of India reported in (1989)39 E.L.T. 493 held that in respect of goods produced on job work basis the assessable value would include cost of material, processing charges and profit of processor. Thus value has to be worked out by taking into account cost of raw material, labour charges and any other profits earned by the processor.

4. It is an admitted position that to manufacture 100 Kgs. of points and crossings, 105 Kgs. of raw material has to be used. Therefore, in working out the value of points and crossings the cost of 105 Kgs. of raw material would have to be taken into account. Undoubtedly, when points and crossings are manufactured a small quantity of raw material become scrap/waste. But that does not detract from fact that to manufacture 100 kg. of points and crossings 105 kg. of raw material has to be used. This element i.e. the cost of raw material would remain the same irrespective of whether scrap/waste is returned to the Railways or kept by the Appellants. The Appellants charge what are known as conversion charges. This includes their labour charges. Such conversion charges would have to be added to the cost of raw material. To this would have to be added profits, if any, earned by the processor (Appellant). Thus suppose the conversion charges are Rs. 450/-, the cost of 105 Kgs. of raw material is Rs. 1,000/-, and Rs. 50/- is earned from sale of scrap the value of the points and crossings would be Rs. 1,500/-.

5. It must be clarified that the value of scrap would be included in the value of the points and crossings only in case where it is shown that the conversion charges get depressed by the fact that the processor is allowed to keep and sell the scrap. Thus in the example given above, it would have to be shown that the conversion charges are Rs. 450/- because Rs. 50/- is earned from the sale of scrap. If the conversion charges are not depressed or if the scrap/waste is returned then, their value will not get added.

6. The burden of proving that the price is so depressed would be on the Revenue. But one of the methods of proving it would be through the contract between the parties itself. In this case the contract is on record. The contract provides as follows:-

"The prices quoted are based on the free supply of Rails by you at our works, Bharatpur, Western Railway, Rajasthan. The tonnage for Rails will be 5% more than the net requirement of Rails required for different items of Switches, 5% being the manufacturing wastage."

"The total requirement of Rails for different items would be forwarded to you within ten days of receipt of your formal order. Manufacturing wastage of 5% has been considered and therefore this wastage will not be separately accounted for and shall not be returned. Any surplus materials received from you against the contract, will be returned to you and dispatched to the destination as advised by you, F.O.R. Our word."

7. Thus, the contract clearly indicates that the price (conversion charges) have been worked out on the basis that 5% wastage would be available to the Appellants. This indicates that the price has been affected by the sale of scrap. In this view, we are in agreement with the view of the Tribunal that in computing the value of points and crossings the value of scrap sold has to be taken into account.

8. Reliance was placed upon the case of Hindustan Engineering & Industries Limited v. C.C.E., Calcutta-I reported in 2002 (144) ELT 418 (Tri. Kolkata). In this case CEGAT has held that the value of scrap is not to be included in working out the value of points and crossings. CEGAT has so held on the basis that in working out the value of points and crossings, the entire value of the raw material supplied was taken into consideration and also that excise was being paid on the scrap which had been sold. CEGAT has so opined even though an earlier decision of CEGAT in the case of Jay Engineering Works Limited v. Commissioner of C. Ex., Hyderabad reported in 1997 (93) ELT 492 (Tribunal) had been brought to its attention. In our view, CEGAT has gone completely wrong in Hindustan Engineering & Industries Limited's case (supra). It must be remembered that the element of raw material is a separate element from the element of conversion charges. The value of the entire raw material used has to be taken into consideration. The element of profit/conversion charges has to be added to the element of value of raw material used. The element of job work charges being separate element from the value of raw material, if it is shown that the job work charges/conversion charges get reduced then the value of scrap has got to be included in the value of the conversion charges. Similarly, even if excise is paid on scrap it would have no bearing on the working out of the value of the points and crossings. What is left is scrap/waste. It is known and is being sold as such. In such a case the value is determined on the price realized. Further, as per the Judgment of this Court in the case of Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd. reported in (2002) 3 SCC 547, the value of the scrap will be worked out on cum-duty basis. Thus no question arises, at this stage, of considering value of raw material in this scrap/waste and there is no double calculation of value of raw material. As a second commodity has come into existence, the excise paid on the second commodity has no relevance in working out the value of the first commodity, i.e. points and crossings. The decision in Hindustan Engineering & Industries Limited's case (supra) will therefore stand over ruled.

9. In the above view, we see no infirmity in the impugned Judgment. We see no reason to interfere. The Civil Appeals stand dismissed. There shall be no order as to costs.