CA Pooja Indani
Sale of goods at a price below manufacturing cost & profit now onwards will not be considered as exception to section 4 of C.EX Act,1944 i.e., price is not the sole consideration for sale (Rule 6) Notification.No.20/2014 C.E.(N.T.) date 11.07.2014.
Hon’ble Finance Minister Mr. Arun Jaitley has presented his first budget proposals from NDA government before parliament on 10.07.2014. The main moto of budget document was to take fewer steps towards the development of economy. Having the base of this object, some changes in law has also been made out in this budget. one of amendment made in central excise valuation rule is as follow:-
Rule 6 of Central Excise Valuation (Determination of price of excisable goods Rules,2000) has been amended through notification no. 20/2014 C.E.(N.T.) dated 11.07.2014. before going to the amended provision what is rule 6 is all about in brief is as follow:-
Rule 6:-
The provisions of rule 6 are invocable when duty payable is not computable as per sec.4 of central excise Act,1944. i.e. Assessable Value is not Transaction Value . In short, when price is not the sole consideration for sale, valuation will be done as per rule 6 & not as per sec.4.
Where the excisable goods are sold in the circumstances specified in clause (a) of sub-sec (1) of sec 4 of the Act except the circumstances where the price is not the sole consideration for sale, the value of such goods shall be deemed to be the aggregate of such transaction value & the amount of MONEY VALUE of any additional consideration flowing directly or indirectly from the buyer to the assessee.
GOI through Notification No. 20/2014 C.E.(N.T.) dated 11.07.14 has inserted a proviso to rule 6 in the central Excise Valuation (Determination of price of Excisable Goods) Rules,2000 before Explanation I , namely
“ provided that where price is not the sole consideration for sale of such excisable goods & they are sold by the assessee at a price less than manufacturing cost & profit & no additional consideration is flowing directly or indirectly from the buyer to such assessee, the value of such goods shall be deemed to be the Transaction Value.”
Due to this change in law, all the disputes/issues regarding valuation which are raised because of Supreme Court decision in its FIAT INDIA PVT.LTD in 2012 (283 ELT 161 SC) comes to an end, i.e. if NO ADDITIONAL CONSIDERATION is flowing directly or indirectly to the assessee then assessable value is only Transaction Value as per sec.4 even if goods are sold at a price lower than its manufacturing cost and profit. i.e. now onwards if facts of the case are similar to stated Fiat case then, valuation will be done as per section 4 irrespective of the fact that goods are sold at lower prices but no additional consideration directly or indirectly.
In Fiat case, company has charged for its product (motor car) below cost price to penetrate the market for continuous period of 5 years. Assessee has contended that due to lesser demand for its product, it charged the customers at a price lower than cost and hence it has paid the duty on such lowered price, though it is below manufacturing cost. The same has been objected by revenue and filed appeal before SC. SC opined that this is a case of extra commercial consideration in fixing of price and artificially depressing it. Full commercial cost of manufacturing and selling was not reflected in the price as it was deliberately kept below the cost of production. Thus, price could not be considered as the sole consideration for sale. No prudent business person would continuously suffer huge loss only to penetrate market, they are expected to act with discretion to seek reasonable income, preserve capital and, in general, avoid speculative investments.it is immaterial that the cars were not sold to related persons and hence revenue’s appeal was allowed & demanded duty from assessee by adding some reasonable percentage of amount in assessable value.
The main purpose of F.M. behind such a change in law, which contravenes the SC decision, might be to uplift the domestic industries for increment in the production upto the production capacity. The new government has observed that due to this decision of SC, low growing industries are threatening to take a risk in business due to lower production capacity and lesser demand for the product and therefore ultimately it was hampering to domestic industrial growth & hence such provision has been inserted in Rule 6.
But, the amendment in law was made from 11.07.14 onwards & it is not retrospective. Now, what about the cases which are pending before appellate authorities by relying on this SC judgment?? Will appellate authorities rely on Fiat judgment for pending cases or else revenue appeal will be dismissed on the ground of notification no.20/2014 C.E.(N.T.)?? To clear out this issue government has to come up with a clarification through circular or instruction regarding the pending cases on the same issue.
If Indian companies like New SSI UNITS sells their limited products lower than the cost may end up with huge accumulated losses and their capital may erode with in few years. Then no point of having healthy Net worth to these companies soon.
Unlike MNC Here in India, Borrowing costs are very high and though it is suicidal way of selling lower than the cost is left with us at least to run the show. But in mere future we are no more in the market
In most of the company sale products below the cost, beaause some of sale value received on cash to avoid tax. It will increase black money in India.
In Fiat India Ltd case the hon’ble supreme court stated specifically the situation where the sale can be made below manufacturing cost.
In my opinion the audit team should analyse the situation under which an assessee sold the goods below the cost. One of the situation is to identify the “no other benefits”. So more responsibilities imposed on Audit Team. Simply if the audit team accepts the Transaction Value then in near future the deppt will loose huge revenue. The said notification should apply after careful investigation.
Multi-national companies will intentionally sell goods for initial 5 years or more at below cost of production to destroy indian domestic production and penetrate indian market and then attain BEP from 6th year onwards.This change in rule will have negative impact in long run in Indian manufacturing industries as indian domestic production will silently destroy.