Custom, Excise & Service Tax Tribunal
M/S. Hindustan Unilever Ltd vs Cce, Pondicherry on 14 November, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
E/S/40303 - 40406/2014 & E/40174 - 40177/2014
(Arising out of Order-in-Appeal No. 166 to 169/2013 (P) dated 28.10.2013, passed by the Commissioner of Central Excise, (Appeals), Chennai).
For approval and signature
Honble Shri P.K. DAS, Judicial Member
Honble Shri R. PERIASAMI, Technical Member
_______________________________________________________
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 : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether the Honble Member wishes to see the fair : Seen
copy of the Order.
4. Whether order is to be circulated to the : Yes
Departmental Authorities? ______________________________________________________
M/s. Hindustan Unilever Ltd. : Appellant
Vs.
CCE, Pondicherry : Respondent
Appearance Ms. Padmavathy Patil, Adv., for the appellant Shri P. Arul, Supdt. (AR), for the respondent CORAM Honble Shri P.K. DAS, Judicial Member Honble Shri R. PERIASAMI, Technical Member Date of Hearing : 14.11.2014 Date of Decision: 14.11.2014 FINAL ORDER No. 40858-40861 / 2014 Per: P.K. Das, The Tribunal by Note Order dated 28.10.2014, proposed to decide the appeals at the time of stay petition hearing as the issue is covered by the decision of the Tribunal in the appellants own case. The Ld. AR sought time for appeal hearing. Today, after disposing the stay petitions, we take up the appeals for hearing.
2. The appellants are engaged in the manufacture of Shampoo classifiable under Chapter 33 of the First Schedule to the Centr4al Excise Tariff Act, 1985. The dispute relates to the clearance of the goods on payment of duty in terms of Section 4 of the Central Excise Act, 1944. In terms of Section 4, the actual sales tax payable is not to be included in the transaction value for the purpose of assessment. The appellants claimed abatement towards equalized sales tax provisionally on the basis of the particulars available for the previous quarter. During the finalization of the assessment, the appellants produced the Chartered Accountants Certificate for the average sales tax on products price. Both the authorities below held that equalized or average sales tax cannot be allowed for abatement under Section 4 of the said Act. We find that the issue is no longer res integra, in view of various decisions of the Tribunal in the appellants own case as under:-
1. Final Order No. A/361-362/13/EB/C-II dt. 16.4.13
2. Final Order No. A/1956/WZB/Mum/05/C-III/EB Dated. 25.08.2005
3. Final Order No. 40459 40460/14 dated 24.06.2014
3. For the proper appreciation of the case, the relevant portion of the Final Order dated 24.06.2014 is reproduced below:-
4. It is seen that the Tribunal subsequently vide Final order No. A/361 & 362/13/EB/C-II dt. 16.4.2013 in the appellant's own case set aside the order and allowed the appeal. The relevant portion of the said decision is reproduced below:-
5. This issue came up before this Tribunal in appellant's own case wherein vide Order No.A/1956/WZB/Mum/05/C-III/EB dated 25.08.2005 this Tribunal held that the Equalised Sales Tax can be allowed to be deducted. This issue again came up before this Tribunal in the case of Dabur India ltd. 2009 (247) ELT 335 wherein this Tribunal observed as under :
7. We have carefully considered the submissions from both sides. There is no dispute about the eligibility for deduction on account of octroi and additional sales tax. The original authority has accepted this in principle. He has disallowed the deduction only based on the grounds that the Respondent have claimed the same on a weighted average basis as mentioned earlier. The Commissioner (Appeals) have allowed the deduction without specifically giving a finding on each of the above three grounds raised by the original authority. We are of the considered view that in the given facts and circumstances of the case, the deduction towards additional sales tax and octroi can be allowed on equalized basis as has been done in the case of Apollo Tyres Limited cited supra. However, we are in agreement with the submissions of the learned DR that the said expenses have to be segregated exclusively in respect of excisable goods cleared by the Respondent for the respective year. Therefore, to enable the same, we set aside the orders of the Commissioner (Appeals) and those of the original authority and remand the matter to the original authority to allow the deduction on the lines indicated above after granting reasonable opportunity of hearing to the party. The party shall produce relevant details within two months from the date of receipt of this Order and original authority shall dispose of the matter within four months thereafter.
6. Again this issue came up before this Tribunal in the case of Dabur India Ltd. 2013-TIOL-125-CESTAT-DEL wherein also the same view was taken by this Tribunal.
7. Following the precedent decisions cited hereinabove of this Tribunal, which was accepted by the revenue, we do not have any hesitation to hold that the appellant are entitled to claim deduction of Equalized Sales Tax from the transaction value to arrive at the assessable value."
5. In view of the above discussion, we hold that the appellants are entitled to claim the abatement of equalized sales tax from the transaction value. Accordingly, both the impugned orders are set aside and both the appeals are allowed with consequential relief. Stay applications are disposed of.
4. The LD. AR appearing on behalf of the Revenue submits that the Tribunal while passing the earlier order had not considered various decisions of the Honble High Court. In this context, he relies on the decision of the Honble Bombay High Court in the case Britannia Industries Ltd. Vs. UOI 1898 (44) ELT 630 (Bom.). In that case, the Honble High Court in respect of deduction of freight charges in price observed that the Chartered Accountants Certificate and P&L account is not conclusive proof of such payments. On a query from the Bench, the Ld. Advocate submits that none of the final orders of the Tribunal was challenged by the Department before the appellate forum. In view of the above, we do not find any reason to take a different view of the earlier final orders. Accordingly, impugned orders are set aside and the appeals are allowed with consequential relief. Stay applications are disposed of.
(Dictated and pronounced in the Open Court)
(R. PERIASAMI) (P.K. DAS)
TECHNICAL MEMBER JUDICIAL MEMBER
BB
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