Customs, Excise and Gold Tribunal - Delhi
Gujarat State Fertilizers Co. Ltd. vs Collector Of Central Excise on 25 July, 1990
Equivalent citations: 1991(52)ELT548(TRI-DEL)
ORDER V.P. Gulati, Member (T)
1. By this application the applicants have sought dispensation of the pre-deposit of duty amount of Rs. 19,219.45 demanded from the applicants in terms of the impugned order. The learned advocate for the applicants stated that originally proceedings were drawn for the recovery of this amount from the appellants for showing cause to the Assistant Collector and who by his adjudication order dropped the proceedings against them holding in their favour both on the question of duty leviable on the additional amount sought to be reckoned towards the assessable value of the goods as also on the time bar. This order of the Assistant Collector was taken up for review for the reason that inasmuch as an element of suppression was involved, the Assistant Collector was not competent to decide the matter. The learned Collector (Appeals) set aside the order of the Assistant Collector and the proceedings were thereafter concluded with the issue of the impugned order. The applicants are in appeal before us against this order of the Additional Collector. The learned advocate has pleaded that the applicants have filed the price list showing all the material facts for the purpose of arriving at the assessable value in respect of the goods which were captively consumed. He has pleaded that the applicants had incurred a net loss and, therefore, had not added any profit element in arriving at the assessable value in terms of Rule 6-b(ii) of the Valuation Rules. He has pleaded that the department has sought to include an element of profit on 8.5% being the gross profit shown by them in their balance sheet for the year 1983-84 and have invoked time period of 5 years for the reason that the gross profit earned by the company was not revealed to the authorities at the time of finalisation in their price list. He has pleaded that according to their understanding of the law the profit element would mean the element of net profit and not gross profit, and stated that the departmental authorities should have called for any additional information, if they so desired in this regard. They have pleaded that, as it is in the show cause notice issued originally for showing cause to the Assistant Collector no element of suppression has been alleged and in this connection he drew our attention to the extract of the show cause notice reproduced in the impugned order. He has pleaded that the applicants had not deliberately held back any information or resorted to any suppression with a view to evade any payment due. The learned SDR of the department pleaded that, admittedly the applicants have not shown the gross profit earned by them in the price list and to that extent they can be taken to have made a mis-statement in the price list. On a query from the Bench she stated that the authorities have not issued any instructions directing the assessees to furnish information nor issued any circular directing the assessees to include the gross profit for the purpose of arriving at the assessable value under Rule 6-B(ii). We observed that, in the show cause notice issued, the suppression has not been alleged specifically and the learned lower authority has merely held that non-furnishing of the gross profit in the price list can be impliedly taken as suppression. It has been pleaded that the applicants had not furnished the information regarding the gross profit on their understanding of the law that only net profit was required to be included. Prima facie we do not find any mala fides on the part of the applicants and going by the ratio of the Hon'ble Supreme Court in the case of Collector of Customs v. Champlar India, we hold that prima facie appellants have a good case on merits. In this view of the matter, we hold that undue hardship would be caused to the applicants in case they are called upon to make the pre-deposit of the duty in terms of the impugned order. We, therefore, order that pre-deposit of duty need not be made.
2. We also order that the recovery of the amount shall stand stayed till the disposal of the case.