Custom, Excise & Service Tax Tribunal
Databyte Equipments Pvt. Ltd vs Cce Pune Iii on 8 July, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. E/02/07 (Arising out of Order-in-Appeal No. P-III/BBP/155/06 dated 12.09.2006 passed by Commissioner of Central Excise (Appeals), Pane) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Defender 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 : No 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?
Databyte Equipments Pvt. Ltd. Appellant Vs. CCE Pune III Respondent Appearance:
Shri Prasad Tendulkar, Consultant for appellant Shri H.M. Dixit, Asst. Commr (AR) for respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Date of Hearing: 08.07.2016 Date of Decision: 08.07.2016 ORDER NO Per: M.V. Ravindran This appeal is directed against order-in-appeal No. P-III/BBP/155/06 dated 12.09.2006.
2. Heard both sides and perused the records.
3. On perusal of records, we note that the issue involved in this case is regarding the demand of differential duty from the appellant on the ground that they have short paid the duty by showing lower prices to their products which were cleared to few buyers like M/s. Panatrona, M/s M.B. Associates, M/s. Databyte Services and Systems and M/s Pioneer Digital Pvt. Ltd. than the prices they have charged to other buyers. It is the finding of the lower authorities that the prices are different for same class of customers hence the demand for differential duty arises.
4. On consideration of the submissions made by both sides, we find that this matter was remanded back to the first appellate authority vide order No. A/1963-1964/WZB/2005/C-II/EB dated 07.12.2005 arising out of departments appeal for considering the decision of the Apex Court in the case of Union of India & Ors. Vs. Bombay Tyres International Pvt. Ltd. 1984 (17) ELT 329 (SC) and 1983 ELT 1896 (S.C.). The matter was sought to be kept in abeyance due to the application for Rectification of Mistake filed by the assessee. We were informed that the said application for ROM is already rejected. Be that as it may, we find that the first appellate authority has not considered the fundamental / factual matrix as to that during the period in question; different prices could be charged to different class of buyers.
5. Learned Consultant submits that they will be in a position to convince the lower authorities that the buyers whose names enumerated herein were different class of buyers for the period in question.
6. On casual perusal of the documents shown to us we do agree with the learned Consultant that during the relevant period in question in this appeal, Section 4 of Central Excise Act, 1944 contemplated different assessable value for same/different class of buyers. In order to appreciate the factual matrix, we deem it fit to set aside the impugned order and remand the matter back to the first appellate authority to reconsider the issue afresh after following the principles of natural justice.
6.1 Keeping all the issues open, we set aside the impugned order and remand the matter back to the first appellate authority to reconsider the issue. Appeal is allowed by way of remand.
(Operative part of the order pronounced in Court) (Devender Singh) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk 1 4 Appeal No. E/02/07