Custom, Excise & Service Tax Tribunal
M/S Transformers & Rectifiers Ltd vs Commissioner, C.Ex. & S.Tax on 8 June, 2016
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No.E/1361/2008-DB
[Arising out of OIA No.78/2008(Ahd-II)CE/SBS/Commr(A)/Ahd, dt.31.07.2008, passed by Commissioner (Appeals), C.Ex. & S.Tax, Ahmedabad]
M/s Transformers & Rectifiers Ltd Appellant
Vs
Commissioner, C.Ex. & S.Tax,
Ahmedabad-II Respondent
Represented by:
For Appellant: Shri Dhaval K. Shah, Advocate For Respondent: Shri Jitendra Nair, A.R. For approval and signature:
Honble Dr. D.M. Misra, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No 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 of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE DR. D.M. MISRA, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL) Date of Hearing/Decision:08.06.2016 Order No.A/10505/2016, dt.08.06.2016 Per: Dr. D.M. Misra This is an appeal filed against OIA No.78/2008(Ahd-II)CE/SBS/ Commr(A)/Ahd, dt.31.07.2008, passed by Commissioner (Appeals), C.Ex. & S.Tax, Ahmedabad.
2. Briefly stated, the facts of the case are that the Appellants are engaged in the manufacture of Electrical Transformers falling under Chapter 85 of Central Excise Tariff Act, 1985. A Show Cause cum Demand Notice was issued to them for recovery of duty short paid on account of non-inclusion of testing charges in the value of Transformers though collected from the customers by issuing commercial invoices. On adjudication, the demand was confirmed and penalty of equal amount was imposed under Section 11AC of Central Excise Act, 1944. Aggrieved by the said order, the Appellant filed the appeal before Ld. Commissioner (Appeals). After analysis of the evidences on record and principle of law laid down, the ld. Commissioner (Appeals) remanded the matter to the Adjudicating authority for detailed verification of the evidences in the light of the observations recorded by him in the impugned order. Aggrieved by the said remand order, the Appellant apprached this forum.
3. The learned Advocate Shri Dhaval K. Shah for the Appellant submits that in addition to the normal in-house tests carried out by them on the manufactured Transformers, the Appellant, at the behest of few customers, carry out various additional quality tests, through third parties equipped with necessary testing equipments and instruments. The cost of these tests were recovered from the customers separately, by raising commercial invoices. It is his contention that the third party test/inspection charges being at the request of the customers, in addition to the normal test, therefore the charges recovered separately for such tests cannot be included in the assessable value, in view of the series of decisions of this Tribunal. It is his contention that the learned Commissioner (Appeals) ought to have decided the matter instead of remanding the matter to the Adjudicating authority.
3. Per contra, the learned Authorised Representative for the Revenue, on the other hand, submits that the learned Commissioner (Appeals) has not rejected the contention of the Appellant raised before him claiming non-inclusion of the value of additional charges recovered from the customers separately, but the learned Commissioner (Appeals) has directed the Adjudicating authority for verification of the facts before arriving at any conclusion on the includability of the additional test charges in the assessable value of the transformers as additional consideration.
4. Heard both the sides. We find that the learned Commissioner (Appeals), after recording the submissions advanced by the Appellant, has observed that the cost of additional test/inspection carried out by the third party at the behest/request of the buyer cannot be included in the assessable value under the circumstances, recorded in the said order. The learned Commissioner (Appeals), after accepting the said principle, remanded the matter to the Adjudicating authority for verification of the facts viz. whether the third party tests carried out by the Appellant is in addition to the normal test and at the behest of the customers etc.. We do not see any deficiency in the findings of the ld. Commissioner (Appeals). Instead, the Appellant should have followed the direction of the learned Commissioner (Appeals) and submitted the evidences before the Adjudicating authority and by now, the matter would have been disposed of. Nevertheless, we remand the matter to the Adjudicating authority to examine the facts and evidences on record, in the light of the case laws and the observations made by the learned Commissioner (Appeals) and decide the issue afresh. The proceeding, as far as practicable, be completed within three months from the date of communication of this order. Needless to mention that a reasonable opportunity of hearing be allowed to the Appellant be granted. All issues are kept open. The appeal is allowed by way of remand to the Adjudicating authority.
(Dictated and pronounced in the open court)
(P.M. Saleem) (Dr. D.M. Misra)
Member (Technical) Member (Judicial)
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