Custom, Excise & Service Tax Tribunal
Parle Products Pvt. Ltd vs Commissioner Of Central Excise, ... on 29 November, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. E/2030/06 E/CO-375/06 (Arising out of Order-in-Appeal No. BR/33/MIV/06 dated 30.3.2006 passed by Commissioner of Central Excise (Appeals), Mumbai-IV) For approval and signature: Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Parle Products Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Mumbai-IV Respondent Appearance: Shri M.H. Patil, Advocate, for appellant Shri Navneet, Additional Commissioner (AR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) Date of Hearing: 29.11.2011 Date of Decision: 29.11.2011 ORDER NO Per: Sahab Singh
This is an appeal filed by M/s. Parle Products Pvt. Ltd. against order-in-appeal No. BR/33/MIV/06 dated 30.3.2006.
2. The brief facts of the case are that the appellant is a manufacturer of excisable goods falling under Chapters 17, 18 & 19 of the Central Excise Tariff Act, 1985. During the course of checking of the records for the period November 1994 to September 1996, it was observed that the appellant was charging less price for clearances made to their depots located at different places as compared to the price charged for clearances made ex-factory to the dealers in Mumbai. According to the proviso (1) to Section 4(1)(a) of the Central Excise Act, where the goods are assessable on ad valorem basis, the normal price at which assessed goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal would be the assessable value. Therefore, the department took a view that the normal price ascertainable at the factory gate would be applicable to the stock transfer and such ex-factory sales to the dealers should be the genuine transaction at a fully commercial price. Accordingly, show cause notices were issued to the appellant demanding differential duty of Rs.1,56,11,459/- for the period November 1994 to September 1996. These show cause notices were adjudicated by the Additional Commissioner who confirmed the demand. The appellant went in appeal before the Commissioner (Appeals) who rejected their appeal. Hence the appellant is in appeal before this Tribunal.
3. The learned counsel appearing for the appellant submitted that the department wants to charge the duty on the basis of ex-factory sale made by them to the dealers in Mumbai. He submitted that the goods sold from the regional sales depot to the dealers in those regions are sales to the different class of buyers and under the provisions of Section 4 of the Central Excise & Salt Act as it existed during the time of clearances, different prices could be charged from the different class of buyers. In support, he relied upon the decision of the Larger Bench of the Tribunal in the case of CCE, Chandigarh vs. Taparia Tools Ltd. 2001 (131) ELT 306 (Tri.-LB) wherein it has been held that wholesale buyer at the factory gate and wholesale buyers from depot constitutes separate class of buyers and ex-factory get price not to be charged in respect of the wholesale buyers from the depot. He also submitted that the decision has been upheld by the Honble Supreme Court as reported at 2005 (180) ELT 312 (SC).
4. The learned Additional Commissioner (AR) appearing for the Revenue submitted that since the factory gate sale is available, the price pertaining to the factory gate sale should be taken as assessable value in respect of the goods sold through depots. He defended the order passed by the lower authorities and submitted that in view of the Honble Supreme Courts decision in the case of Indian Oxygen Ltd. vs. CCE 1988 (36) ELT 723 (SC) where goods are partly sold from the depot and partly from the factory, ex-factory price should be the basis for the value under Section 4, even for the goods sold from the depot. He, therefore, submitted that the order-in-appeal passed by the Commissioner (Appeals) is correct and proper and need to be upheld by this Tribunal.
5. After hearing both sides, we find that the appellant is clearing the goods to different dealers through their regional depots. They are also selling the goods to the dealers in Mumbai at their factory gate. The contention of the Revenue in this case is that the price available at the factory gate would form the normal price for the purpose of assessment in respect of the sales made through various depots for sales to dealers in those regions. We find that the issue stands settled by the Larger Bench of the Tribunal in the case of Taparia Tools Ltd. (supra) wherein it was held that wholesale buyers at the factory gate and the wholesale buyers from the depot constitute separate class of buyer and the ex-factory price not to be charged in respect of the sale to the wholesale buyers from the depots. This decision stands confirmed by the Honble Supreme Court. We, therefore, find that the Revenues contention is not acceptable and accordingly the order-in-appeal is set aside and the appeal is allowed. The cross objection also stands disposed of accordingly.
(Dictated in Court) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President tvu 1 5