Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of C. Ex. vs Mistair Home Products on 8 December, 1998
Equivalent citations: 1999(113)ELT204(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. M/s. Mistair Home Products, the respondent in this appeal; manufactured and cleared, inter alia shower to shower medicated prickly heat powder. It filed a price list under Part I i.e. the normal price at which such goods are sold or offered for sale for this product. Assistant Collector did not accept this price list and returned it to the assessee asking it to revise the value by applying the provision of Notification 245/83, dated 13-9-1983. This notification provides for an exemption, from duty of patent or proprietary medicine in excess of the duty leviable on the value to be calculated in the manner specified in the notification. The respondent resisted the contention claiming that the value ought to be fixed on the basis of cost of raw material + conversion charges + including the profit. In pursuance of the Assistant Collector's order, the Superintendent demanded differential duty on the goods already cleared. The Assistant Collector confirmed the demand. On appeal the Collector (Appeals) noted that the issue has been decided by the order of his predecessor from which he quoted extensively and allowed the appeal. Hence this appeal.
2. The Collector (Appeals) has held that the exemption under Notification 245/83 cannot be forced upon the assessee, and that the assessee has a right to choose the value specified in Clause(a) of Sub-section (1) of Section 4.
3. We do not consider it necessary to go into the general the question as to whether an exemption notification is binding an assessee or not. That is not required to be done here. The notification has an exemption of optionality in that it is allowed only subject to the fulfilment of three conditions. One of these is that exemption should be claimed in respect of all medicines cleared by the assessee, which are specified in the Drugs (Price Control) Order, 1987. Another is that no other discount should be claimed as deduction. It is not clear as to whether the Assistant Collector's order took into account these facts. If in respect of any of the other medicines manufactured and cleared by the assessee, the benefit of the notification was not claimed, it will not be available to the goods now under consideration. So also, unless the manufacturer eliminated other discounts, the benefit of this notification would not be available.
4. The Collector (Appeals) has also answered the point sought to be made by the departmental representative that what is attempted to be done by the department is in effect to apply the second proviso to Clause(a) of Sub-section (1) of Section 4 of the Act which provides that any statutorily fixed wholesale price shall be the assessable value. The valid distinction that the Collector (Appeals) draws between the wholesale price mentioned in that proviso and the retail price preferred to in the notification is sought to be circumvented by the argument that the notification is sought to be so apply it by making appropriate deduction from retail price and it is the wholesale price that would be arrived at. This ignores the fact that the proviso in Sub-section (1) will apply where the wholesale price is statutorily fixed. If this contention of the departmental representative is to be accepted, it would result in holding that there was a statutory price for the wholesale price. This is obviously not the case under the Drug (Price Control) Order.
5. We therefore see no reason to interfere. Appeal dismissed.