Customs, Excise and Gold Tribunal - Delhi
Shree Digvijay Cement Co. Ltd. vs Collector Of Central Excise on 30 November, 1987
Equivalent citations: 1988(33)ELT778(TRI-DEL)
ORDER K.L. Rekhi, Member (T)
1. A common issue is involved in these 8 appeals, they pertain to the same appellants and were argued before us together. This combined order will dispose of all of them.
2. The appellants manufacture, inter alia, man-made fabrics. They are aggrieved by demands for differential Central Excise duty raised on their RT-12 assessment returns for the months of February, 1976 to January, 1977. The demands were raised on account of the following 3 grounds :-
(1) Exemption from additional Central Excise duty on samples denied for the period prior to June, 1976:
(2) 6-1/4% discount for the 'B' Grade fabrics, as compared to the prices of 'Fresh' fabrics, denied; (3) Cash discount denied.
3. So far as the exemption from additional duty on samples is concerned, the appellants have not placed before us the relevant classification list nor any other proceeding in which they had claimed the said exemption or in which the Assistant Collector had denied them such exemption. However, we find from the assessment memorandum recorded by the Superintendent on the RT 12 Returns that this exemption was admissible in terms of Notification No. 192/76-C.E. dated 19-6-1976. This notification is prospective. Since the onus to establsih their claim to the exemption is on the appellants we asked them during the hearing today to show us the authority under which they were claiming the exemption for the period prior to 19-6-1976. They invited our attention to exemption Notification No. 171/70-CE. dated 21-11-1970 as amended by Notification No. 136/72-C.E. dated 20-5-1972. On perusal of this notification, we find that it relates to the basic Central Excise duty chargeable under Section 3 of the Central Excises and Salt Act, 1944. It does not grant exemption from additional excise duty chargeable under the Additional Duties of Excise (Goods of Special Importance) Act, 1957. Such exemption from additional excise duty was granted only by Notification No. 192/76-CE dated 19-6-1976. The appellants are, therefore, not entitled to this exemption for the period prior to 19-6-1976. If they have availed of the exemption wrongly, the demands issued therefor have to be upheld and we do so.
4. So far as the question of denial of 6-1/4% discount for 'B' Grade fabrics and cash discount is concerned, the appellants have placed on record the price lists and the orders passed thereon by the Assistant Collector. A number of price lists are involved. To take up the first relevant price list, bearing No. 50/75 dated 26-11-1975, we find that the appellants claimed therein the 6-1/4% discount. Without issuing a show cause notice or hearing the appellants, the Assistant Collector passed the following order on 29-11-1975 :-
"1. Approved in Pt. IV as the goods are sold through a related person.
2. The value approved should be the highest selling price for the Pt. 1 same description of goods.
3. The goods are differentiated by way of discount and "Normal price" remains the same and deduction from the normal price is not accepted.
1. the approved value should be the value on which the goods are sold through their different regional offices to any independent wholesale dealer (not related to them).
2. Conditions as stipulated vide 2 & 3 above is also applicable in this case. Sd/- 29-11-1975 Assistant Collector"
5. The appellants filed an appeal against this order before the Appellate Collector and waited for the orders of the Appellate Collector. The orders of the Appellate Collector took more than 4 years in coming. In the meantime, more price lists were filed by the appellants on which the Assistant Collector recorded the same orders as he had passed on price list No. 50/75 (extracted above). Since the appellants had challenged the first order of the Asstt. Collector dated 29-11-1975, they did not file appeals separately against the identical orders recorded by the Assistant Collector on subsequent price lists under the impression that repetitive appeals on the same issue were unnecessary. However, since they went on deducting the discount from the assessable value in contravention of the Assistant Collector's orders on the price list, the Superintendent raised the impugned demands on the RT 2 monthly assessment returns. The appellants filed appeals against such demands.
6. Before us, the appellants stressed the point that the price approvals as well as the RT 12 demands had been made in violation of the principles of natural justice inasmuch as neither the Assistant Collector nor the Superintendent had heard the appellants. They raised the plea of time bar also in respect of a portion of some of the demands but ultimately did not press this plea since the amounts hit by the time bar were very petty.
7. The learned representative of the department stated that the appellants should have filed appeals against each of the price approvals recorded by the Assistant Collector even though all the orders were identically worded and the appellants had filed an appeal against the first such order in the series. He argued that at the stage of assessing the monthly RT 12 Returns under Rule 173-I, the role of the Superintendent was a limited one - to see whether the assessee had adhered to the rates of duty and assessable values as approved by the Assistant Collector in the classification list and the price list or not. If the assessee had not paid the duty according to the Assistant Collector's orders, the Superintendent was to grant refund of the excess payment or to make a demand for the short payment. It was only an arithmetical calculation for which no show cause notice or personal hearing was necessary.
8. The learned representative of the department may be right in saying that the scope of assessment on RT 12 Returns under Rule 173-I is a limited one - to check conformity with the approved classification list and price list. But here the relevant price lists themselves are under attack because of having been approved by the Assistant Collector in violation of principles of natural justice. On the appellants' appeal, the Appellate Collector vacated the first order of the Asstt. Collector dated 29-11-1975 and directed the Asstt. Collector to decide the matter afresh after granting a proper hearing to the appellants. Since the subsequent price approvals suffer from the same basic defect, inasmuch as the Asstt. Collector mechanically repeated thereon the orders which he had already passed on 29-11-1975 on the first relevant price list No. 50/75, the subsequent price approvals are equally bad. We are informed by the appellants that no fresh orders have been passed by the Asstt. Collector on this first price list after the matter was remanded to him by the Appellate Collector on 16/21-7-1930. Since the principles of natural justice have been violated, interests of justice require that the Assistant Collector should hear the appellants on the maintainability of the demands.
9. In the result, we confirm the demands only to the extent they relate to additional excise duty on samples. The demands, insofar as they relate to denial of 6-1/4% discount for 'B' grade fabrics and cash discount, are set aside and the Assistant Collector is directed to pass fresh orders on the admissibility or' otherwise of these two discounts and the maintainability of the demands relating thereto,
10. All the 8 appeals are disposed of in the above terms.