Customs, Excise and Gold Tribunal - Delhi
Kerala State Detergents And Chemicals ... vs Collector Of Central Excise on 4 November, 1986
Equivalent citations: 1987(27)ELT312(TRI-DEL)
ORDER M. Gouri Shankar Murthy, Member (J)
1. The material facts in this appeal (heard along with Appeal No. 805/86-A) are -
(a) the appellant is alleged to have filed 10 different price-lists in respect of various products manufactured by them for diverse periods between 4-12-1980 and 26-11-1982 (in the paper book, however, we find only nine price-lists enclosed. Price-list No. 5/81 does not appear to have been included in the paper book);
(b) out of the nine price-lists produced before us in the paper-book, it would appear that all except Price-list No. 1/82 were in part-IV, i.e., in relation to excisable goods for sale to or through related persons - Section 4(1)(a) proviso III. Price-list No. 1/82 was, however, for excisable goods for sale by the assessee to buyers (not being related persons) in the course of wholesale trade in part-I. In all the price-lists filed in part-IV, however, description of the related persons was furnished to be "depots managed by company's staff";
(c) some of the price-lists, namely, Price-lists No. 5/80, 6/80, 7/80, 8/80 and 1/81 would appear to have" been provisionally approved on diverse dates;
(d) in the price-lists approved provisionally as aforesaid as well as Price-lists No. 3/81, 4/81 and 6/81, exclusion of certain post-manufacturing and distribution expenses in the computation of the assessable value was claimed. In the Price-list No. 1/82 as well, the deductions claimed related to post manufacturing expenses and distribution expenses;
(e) in none of the price-lists on record, except Price-list No. 7/80, has there been any claim for exclusion of trade discount. In the said price-list the discount claimed was, in the nature of a quantity discount, namely, 9 cakes per carton of 108 cakes. In the subsequent price-lists, there was no claim of exclusion of any discount. Exclusion of freight has not been claimed in any of the price-lists at all;
(f) however, in response to a letter dated 3-11-1981 from the Sector Officer of the Respondent, the appellant had written to say with reference to Price-lists No. 3/81, 4/81 and 5/81 that trade discount was -shown in the Price-list No. 7/80 while it was included in the post-manufacturing expenses in the subsequent Price-list No. 3/81;
(g) similarly, in relation to the price-list No. 6/81, in response to letters dated 3-12-81 and 30-1-82,-the appellant had clarified that the post-manufacturing expenses sought to be excluded from the assessable value included "Trade Scheme", which is none other than a quantity discount;
(h) in finalizing the approval already accorded provisionally to Price-lists Nos. 5/80, 6/80 and 7/80 as aforesaid as well as the remaining price-lists, the Assistant Collector by his order dated 22-10-83, refused to exclude, -amongst others, trade discount [on the ground that although "informed of the judgment of the Hon'ble Supreme Court vide show cause notice dated 16-7-83 and in their reply dated 26-7-83, they also had not raised any objection regarding inclusion of PME"] and average freight (quantified later, before adjudication) on the ground that it was inflated;
(i) an appeal, directed against the exclusion of average freight only, was allowed only in regard to it and the matter was remanded to the Assistant Collector for a de novo consideration;
(j) in the course of the readjudication, the appellant sought to re-agitate the issue of trade discount as well. While allowing the claim for exclusion of average freight, the Assistant Collector by his order dated 26-2-85, rejected the contention relating to exclusion of trade discount on the grounds that it was never claimed at any stage - neither in the price-lists nor in the replies to the notices to show cause - and further, the inclusion thereof was not agitated in the appeal as well, confined as it was only to the question of exclusion of average freight. The de novo adjudication was restricted in its scope by the order of remand to average freight only. Accordingly, the exclusion of discount was refused;
(k) the instant appeal was - a sequel to the dismissal of an appeal against the aforesaid order by the Collector (Appeals) by his order dated 22-8-85.
2. The only issue argued before us is the one relating to trade discount.
3. Before us, it was contended, inter alia, that the failure to appeal against that part of the original order in adjudication dated 22-10-83 was merely technical and the Tribunal is not restricted merely to adjudicate upon those issues that were raised before the lower authorities. The prayer was for a remand for consideration of the question of exclusion of trade discount from the assessable value after determining its actual quantum on the evidence that may be adduced in support of it. Reliance was placed on the judgments of the Hon'ble High Courts of Andhra Pradesh in 116 ITR 778 (Commissioner of Income-tax v. Gangappa Cables) and Madras in 144 ITR 573 (Commissioner of Income-tax v. Sri Rajagopal Transports Pvt. Ltd.).
4. It would appear to us on the perusal of papers and the submissions made that -
(a) it cannot be said that the appellant had failed to claim exclusion of trade discount in all the aforesaid price lists. There was a specific claim for exclusion of trade discount in price list No. 7/80. Likewise, in regard to price-lists Nos. 3/81, 4/81 and 5/81, discount was said to have been included in the post-manufacturing expenses sought to be excluded. In regard to price list No. 6/81, it was clarified that "Trade Scheme" of which exclusion was claimed was nothing but a quantity discount. In at least 5 price-lists out of ten, therefore, one may take it that before they were finally approved, a claim for exclusion of trade discount was made;
(b) even so, when such exclusion was refused in the order of adjudication dated 22-10-83 along with other elements like, e.g. equalised freight, it was only the inclusion of equalized freight that was challenged in appeal and not the refusal to exclude trade discount;
(c) consequently, the order in adjudication dated 22-10-83, right or wrong, had become final in regard to inclusion of trade discount in the assessable value;
(d) the remand in appeal was also justifiably restricted in scope to the determination of the question relating to average freight only. The Collector (Appeals) was very circumspect in vacating that portion of the order in adjudication "denying abatement of average freight" only in his order of remand dated 28-2-84;
(e) if still aggrieved, the appellant could have come in appeal against that order and canvassed for consideration of the question of trade discount as well. No such appeal was filed and the order of remand had also become final;
(f) that being so, the adjudicating authority on remand, as well as the Collector (Appeals) in appeal against that order were right in refusing leave to the appellant to resuscitate the claim for exclusion of trade discount;
(g) the decisions cited before us do not seem to support any such resurrection.
(i) In 116 ITR 778, it was a new claim, made for the first time before the Tribunal, in support of which there was already material on record. Distinguishing, therefore, the ratio of the Hon'ble Supreme Court in (1978) 111 ITR 1 (Additional Commissioner of Income-tax v. Gurjargravures Pvt. Ltd.), wherein, there was neither a claim nor evidence in support of it, it was held such a new claim could be made.
(ii) To the same effect was the decision in 144 ITR 573 (Commissioner of Income-tax v. Sri Rajagopal Transports Pvt. Ltd.);
(h) this is not such a case. It is not a new claim made for the first time before the Tribunal for which supporting evidence is already on record. It is, on the contrary, revival and resuscitation of a dead claim concluded by two orders - one by the adjudication officer on 22-10-83 and again by the order of the Collector (Appeals) dated 28-2-84.
5. In the premises, we see no reason to interfere with the orders below and the appeal is, accordingly, dismissed.