Custom, Excise & Service Tax Tribunal
Itel Industries Ltd vs Commissioner Of Central ... on 18 February, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH
BANGALORE
Appeal(s) Involved:
E/482/2007-DB
[Arising out of Order-in-Appeal No.20 to 33/2007-CE dated 29/03/2007 passed by Commissioner of Central Excise(Appeals),Cochin ]
For approval and signature:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER
HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
ITEL INDUSTRIES LTD
KANJIKODE WEST, PALAKKAD
Appellant(s)
Versus
Commissioner of Central Excise,Customs and Service Tax CALICUT
CENTRAL REVENUE BUILDING,
MANANCHIRA, CALICUT,
KOZHIKODE, - 673001
KERALA
Respondent(s)
Appearance:
Mr. G. THANGARAJ, Consultant 10,ANNA AVENUE BAKTHAVALSALAM NAGAR ADAYAR - 600020 CHENNAI For the Appellant Mr. MOHAMMAD YUSUF, A.R. For the Respondent Date of Hearing: 18/02/2016 Date of Decision: 18/02/2016 CORAM:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER Final Order No. 20279 / 2016 Per : ARCHANA WADHWA After hearing both sides, we find that the impugned order stands passed by the adjudicating authority in de novo proceedings when the matter was earlier remanded by the Tribunal. As per the facts on record, the appellants are engaged in the manufacture of telephone instruments classifiable under Chapter 85 of the Central Excise Tariff Act 1985. The clearances of such telephone apparatus were being effected by them from their factory gate as also from their depots. The period of dispute involved in the present appeal is from February 1993 to March 1994.
2. The appellants were issued a show-cause on 2nd September 1993 alleging that after the clearance of the goods from their factory gate to their depot, the same were being sold at a higher price and as such the appellants are required to pay duty on their depot sale price. During the course of adjudication, the appellant took a categorical stand that their 100% sales are not from the depots and there are factory gate sales also, in which case, the price available at the factory gate has to be adopted as the assessable value. Such contention of the appellant was not found favour with by the lower authorities and the matter travelled up to the Tribunal.
3. Tribunal vide its order dated 09.07.2001, considered the above stand of the assessee and remanded the matter to the lower authorities with a direction to consider the appellants factory gate sale prices. In de novo proceedings, the lower authorities confirmed the demand to the extent of Rs 13,56,678/- as against the original demand of Rs 68,45,997/-. While confirming the demand, the authorities observed that in respect of some of the models sold by the assessee from their depots, there is no factory gate sale price available. Accordingly in respect of those models, the authorities below adopted the depot sales and after allowing permissible deductions, confirmed the demands. Learned advocate has no dispute in respect of confirmation of demands on the said count as he fairly agrees that there was no factory gate sale available in respect of such models.
4. However, in respect of other models where there was factory gate sales as also depot sales, the grievance of the assessee is that though the lower authorities has adopted the sale price at the factory gate, it is not the price which was approved by the jurisdictional Central Excise Officers in terms of the price-lists filed by them. He clarifies that during the relevant period, they have to file price-lists as was the law at that time which were approved by their jurisdictional Central Excise Proper Officer. As such, the approved price-lists were required to be adopted as the assessable value available at the factory gate in terms of the erstwhile provisions of Section 4(1) of the Central Excise Act 1944. However the Assistant Commissioner has refused to accept the approved assessable value by picking up some sales from the factory gate where the appellant had cleared the goods at the higher value and had paid the duty at the higher price. It is the submission of learned advocate that it is the approved assessable value which is required to be adopted and it is not open to the authorities to redecide the assessable value inasmuch as allegation in the show-cause notice did not originally relate to the correctness or otherwise of the approved assessable value.
5. After hearing the learned A.R., we agree with the learned advocate that in terms of the earlier order of the Tribunal, the matter was remanded to adopt the approved assessable value at the factory gate in respect of sales made through depots, where there were sales from the factory gate as also from the depots. The lower authorities have done this exercise. While doing so, they have refused to adopt the approved assessable value. We note that the original dispute relates to the depot sale price and there was never any dispute as regards the correctness or otherwise of the factory gate assessable value approved in their price list. As such it is not open to the Revenue to re-assess the factory gate sale price and to recalculate the appellants liability accordingly.
10. In view of our foregoing discussions, we are once again constrained to remand the matter to the lower authorities with clear and specific directions to adopt the approved assessable value in terms of the price lists filed in Part-I. Learned advocate submits that all such approved price lists are available with them and shall be produced before the original adjudicating authority. However, we make it clear that such exercise shall be done by the adjudicating authority only in respect of those models which are cleared from the factory gate as also from depots. In respect of models which are cleared exclusively from the depots, learned advocate has not contested the duty demand and has agreed that it is the depot sale price which has been correctly adopted by the lower authorities. Inasmuch as the issue relates to year 1993-94, we expect the adjudicating authority to finalize the de novo proceedings as soon as possible.
(Order pronounced and dictated in open court) ASHOK K. ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER pnr 5