Custom, Excise & Service Tax Tribunal
Acqua Bisleri (India) Ltd vs Commissioner Of Central Excise, Mumbai ... on 16 May, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO. I
Application Nos. E/S/435, 436 & 437/12 in Appeal Nos. E/322, 323 & 324/12
And
Appeal No. E/322, 323 & 324/12
(Arising out of Order-in-Original No. 428/35/V/2011/Commr/KS dated 05.12.2011 passed by Commissioner of Central Excise, Mumbai V.)
For approval and signature
Honble Mr.S.S. Kang, Vice President
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 :Yes 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?
Acqua Bisleri (India) Ltd
Jagdish Dave
Sanjay Karkare
Applicants
(Represented by: Mr. Aqeel Sheerazi, Advocate)
Vs
Commissioner of Central Excise, Mumbai V
Respondent
(Represented by: Mr. Navneet, Additional Commissioner (A.R.)) CORAM:
Honble Mr.S.S. Kang, Vice President Honble Mr. Sahab Singh, Member (Technical) Date of Hearing : 16.05.2012 Date of Decision: 16.05.2012 ORDER NO..
Per: S.S. Kang
1. Heard both sides.
2. Applicants filed these applications for waiver of pre-deposit of duty of Rs 36,96,860/-, interest and penalties.
3. The proceedings relate to the period April 1999 to February 2000. For the period in dispute Revenue raised demand of duty on the ground that the applicants were taking non refundable amount from the customers as security deposit in respect of the reusable containers used in the manufacture of bottled water and Revenue wants to add this amount to the assessable value to the MRP. The demands were contested by the applicants on the ground that the cost of reusable containers has been amortized and included in the MRP. Therefore, the demands are not sustainable.
4. The matter came upto the Tribunal and the Tribunal vide final order dated 20.01.2011 remanded the matter to the adjudicating authority by making the following observation :
6. In circular dated 27.2.2003 ibid, the Board clarified that the above instructions would equally apply to goods assessed under Section 4A also. In other words, if the cost of reusable containers (glass bottles, crates, etc.) is amortised and included in the cost of products to be assessed under Section 4A, the question of adding any further amount towards such sots does not arise except where audit of accounts reveals that the cost of reusable containers has not been amortised and included in the value of the product. In both the impugned orders, the learned Commissioner considered the Boards clarification and proceeded to hold that, as per the Chartered Accountants certificates produced by the assessee, the cost of reusable containers was amortised and included in the cost of Bisleri water and hence there was no question of including the refundable deposits collected from ultimate consumers, in the MRP of the product. We have also perused a sample of the Chartered Accountants certificates available on records. In these certificates, the Chartered Accountant certified, on the basis of the records and documents produced before me and information and explanation given to me by M/s Parle (Exports) Limited, that the company had collected/refunded certain deposits during the period from 1/01.2000 to 31/11/2000. Another sample of certificate indicates that the cost of empty container was amortised on a certain basis and the amortised value included, in the MRP of 20 litre Bisleri Water, Rs 70/-, and in the MRP of 5 litre Bisleri water, Rs. 25/-. This certificate was also issued on the basis of records and the documents produced before me and information and explanation given to me by M/s Parle (Exports) Limited. The learned Commissioner apparently accepted these certificates to be conclusive evidence of amortization of the cost of empty containers and its inclusion in the MRP of the Bisleri water. There is no indication, in the impugned orders, that any of the relevant records and documents having been independently verified by the Commissioner. It was incumbent upon him to have an audit of accounts under Section 14A of the Central Excise Act, 1944 done to ascertain whether the fact certified by the Chartered Accountant was correct. In our view, the Boards circulars impliedly made it incumbent upon the Commissioner to take all measures within his command to ensure that the cost of the reusable containers has been amortised and included in the MRP of the product, before taking a view in favour of the assessee. Before us, the learned JCDR and the learned counsel have also agreed on the applicability of Section 14A of the Act to the peculiar factual situation obtaining in this case. The remand order passed by this Bench was not to be understood as a green signal for blindly accepting the Chartered Accountants certificates. It should have been read with the applicable provisions of law and the facts and circumstances of the case. Therefore, we are constrained to allow both these appeals by way of remand, with a request to the Commissioner to pass fresh speaking orders on the valuation issue after taking such measures as indicated herein and giving the assessee a reasonable opportunity of being heard.
5. In pursuance to the remand order passed by the Tribunal, the present impugned order is passed by the adjudicating authority.
6. The contention of the applicant is that the Tribunal while remanding the matter to the adjudicating authority specifically directed the adjudicating authority to conduct an audit of accounts under Section 14A of the Central Excise Act to ascertain whether the certificate given by the Chartered Accountant that the cost of reusable containers has been amortized and included in the MRP of the product. The contention of the applicant in respect of this is that no such audit has been conducted by the adjudicating authority and the impugned demand was confirmed. The contention is that as the impugned order has been passed in violation of the direction of the Tribunal, the same is not sustainable.
7. Revenue submitted that the adjudicating authority specifically asked for the evidence in support of their claim. However, the applicants failed to produce the same. The Revenue relies on para 32 of the adjudication order whereby the adjudicating authority noted the fact that the applicants were called upon to furnish all the necessary evidence and material and inclusion of the cost of reusable containers in the MRP vide letter dated 1.11.11. As the applicants had not produced the evidence, therefore the impugned order is rightly passed.
8. In response to the notice of personal hearing, applicants vide letter dated 15.11.11 requested for adjournment and thereafter the same was fixed on 20.11.11. Applicants submitted the documents on 28.11.2011 such as copies of certificate of the Chartered Accountant dated 20.3.2003, Expenses Summary Statement as per Trial Balance as on 31,3,2000, copy of worksheet of landed cost of packing materials, copies of purchase invoices of packing materials etc. In spite of submitting these documents, the same were not taken into consideration while passing the impugned order. The fact regarding submission of documents was brought to the notice of the adjudicating authority at the personal hearing but the same were not taken into consideration.
9. We find that the Tribunal vide final order dated 20.01.2011 remanded the matter to the adjudicating authority to decide the issue afresh after conducting special audit as provided under Section 14A of the Central Excise Act. The present impugned order is passed without complying with the direction of the remand order in spite of the fact that appellant submitted relevant documents.
10. In view of the above, the impugned order is set aside after waiving pre-deposit of the dues and the matter is remanded to the adjudicating authority to decide afresh in view of the directions given by the Tribunal in the remand order dated 20.01.2011 and after affording an opportunity of personal hearing to the appellants.
11. Appeals are allowed by way of remand in above terms.
(Dictated in Court.) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President rk 5