Custom, Excise & Service Tax Tribunal
M/S.Reckitt Benckiser (India) Ltd vs Commissioner Of Central Excise, Bolpur on 8 August, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Stay Petition No.SP-1055/11
&
Appeal No.Ex.Ap.867/11
(Arising out of Order-in-Appeal No.58/BOL/2011 dated 25.05.2011 passed by the Commissioner(Appeal-IV) of Central Excise, Kolkata.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL)
HONBLE DR. I.P. LAL, MEMBER(TECHNICAL)
1. Whether Press Reporters may be allowed to see
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s.Reckitt Benckiser (India) Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Bolpur
Respondent (s)
Appearance:
Shri J.P.Khaitan, Sr.Advocate & Malay Dhar, Advocate for the Appellant Shri A.K.Biswas, Supdt.(A.R.) for the Respondent CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical) Date of Hearing:- 08.08.2013 Date of Pronouncement :- 08.08.2013 ORDER NOS-614/A-252/KOL/13 Per Dr. D.M. Misra.
1. This is an application seeking waiver of pre-deposit of duty of Rs.38.21 Lakhs and equal amount of penalty imposed under Section 11AC of Central Excise Act, 1944.
2. Shri J.P.Khaitan, Ld.Sr.Advocate appearing for the Applicant has submitted that the issue involved in the present case relates to determination of assessable value of their product namely Ultramarine Blue cleared in bulk quantity to their Hyderabad processors for retail packing. The Ld.Sr.Advocate submitted that the period involved in their present Appeal is from 01.01.1997 to 30.09.1997. While clearing the bulk pack to the said Hyderabad processor they adopted the price at which such goods were also purchased by them from independent sellers. Thus, the price of independent sellers were adopted for determination of assessable value of Ultramarine Blue in bulk quantity following the principle laid down under Rule 6(b) (i) of Central Excise Valuation Rules, 1975. The assessment has been provisional all these years and abruptly made final by the Assistant Commisioner on 29th March, 2004 without giving any opportunity to the applicant to present their case. The Applicant has lodged a protest against such unilateral finalization of assessment. Consequently a show cause notice was issued to them demanding differential duty on the assessed value of bulk pack under rule 6(b)(ii) of erstwhile Central Excise Rules, 1975. The Ld.Sr.Advocate fairly submitted that for the subsequent period on the same issue this Tribunal has already granted stay vide order No.S-416/KOL/2010 dated 13.12.2010. The Ld.Sr.Advocate further fairly submitted that the issue has not been decided on merit by the Ld.Commissioner(Appeals) as the Ld.Commissioner(Appeals) dismissed their Appeal on the ground of non-compliance with the interim direction of pre-deposit of Rs.30.00 Lakhs as a condition for hearing their Appeal by him.
3. The Ld.A.R. for the Revenue has submitted that the Ld.Commissioner(Appeals) has dismissed their Appeal for non-compliance with the provisions of Section 35F of Central Excise Act, 1944 as the Applicant had failed to deposit the directed amount of Rs.30.00 Lakhs. The Ld.A.R. for the Revenue further submitted that the Applicant has also not participated in the process of adjudication before the original authority.
4. After hearing both sides for some time we find that the Appeal itself could be disposed of at this stage. Accordingly, after waiving the requirement of pre-deposit of dues adjudged we take up the Appeal for disposal with the consent of both the sides.
5. We find that the issue involved in the present case pertains to determination of value of stock transferred Ultramarine Blue to their processors. The dept. sought to apply Rule 6(b)(ii), whereas it is the claim of the Appellant that it should be on the basis of comparable price as per Rule 6(b)(i) of erstwhile Central Excise Valuation Rules, 1975. The issue is a debatable one. We find that the Ld.Commissioner(Appeals) has dismissed the Appeal for non-compliance with the direction of pre-deposit, hence, it is clear that he has not discussed the issues in detail nor gone into the merit of the case. We find that the assessment of the Appellant were on provisional basis for a considerable period of time. It is their grievance that the assessment has been finalized without issuing notice to them. In such a situation remanding the matter to the Ld.Commissioner(Appeals) would not serve the purpose rather lead to further litigation. Accordingly in the interest of justice, the matter is remanded to the original adjudicating authority for deciding the issue afresh after giving reasonable opportunity to the Appellants. From the records we find that the Appellant has not been seriously prosecuting their case before the lower authorities. The Ld.Advocate has categorically submitted that they would prosecute the case before the lower authorities and submit all the necessary documents as and when called for from the adjudicating authority. In the result the impugned order is set aside and the case is remanded to the adjudicating authority for deciding all issues afresh. Needless to mention a reasonable opportunity of hearing be granted to the Appellant. We made it clear that we have not expressed our opinion on any of the issues. Appeal allowed by way of remand to the original authority. Stay Petition disposed of.
(Pronounced and dictated in the open court.) SD/ SD/ (I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm 4 Appeal No.Ex.Ap.867/11