Custom, Excise & Service Tax Tribunal
C.C.E. Bhopal vs M/S. Madhya Pradesh United ... on 4 February, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. E/2687/2005 -Ex[DB]
[Arising out of Order-In-Appeal No. 7-CE/BPL/2005 dated: 01.02.2005 passed by Central Excise Commissionerate, Bhopal]
For approval and signature:
Hon'ble Mr. Rakesh Kumar, Member (Technical)
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
1
Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
C.C.E. Bhopal ...Appellant
Vs.
M/s. Madhya Pradesh United Polypropylene Respondent
Appearance:
Mr. Ranjan Khanna, DR for the Appellants None for the Respondent CORAM:
Hon'ble Mr. Rakesh Kumar, Member (Technical) Hon'ble Mr. S.K. Mohanty, Member (Judicial) Date of Hearing/decision.04.02.2015 FINAL ORDER NO. 50302 /2015-Ex(Br) Per Rakesh Kumar (for the Bench):
The facts giving rise to this appeal are, in brief, as under:
1.1 The respondents are manufacturers of plain as well metalized BOPP films. The period of dispute is from April 1992 to October 1996. During this period, the appellant were giving trade discount of 3% and cash discount of 2% to certain customers which had not been declared in the price list and as such were not known prior to the clearance and these discounts were not available to all the customers. The assessments during above mentioned period of dispute were provisional. The assessment were finalized by the Assistant Commissioner vide order in original dated 24.01.1997 by which he disallowed the deduction of these discounts. However, he directed the Superintendent to finalize the assessment as the RT-12 returns filed during this period had been assessed on provisional basis only. The respondent filed an appeal before the Commissioner (Appeals) against the order in original dated 24.01.1997 of the Assistant Commissioner and the Commissioner (Appeals) vide order in Appeal dated 09.09.2004, upheld the Assistant Commissioners order. Against this order of the Commissioner (Appeals), the respondent filed an appeal before the Tribunal and the same was dismissed for non-prosecution vide final order No. 269/09-EX dated 16.04.2009.
1.2 In pursuance of the Assistant Commissioners order 24.01.1997, the Jurisdictional Superintendent Central Excise quantified the amount of differential duty as Rs. 24,84,392/- and issue a Show Cause Notice dated 12.12.1997, asking the respondent to show cause as to why this amount should not be recovered from them under Rule 9(2) of the Central Excise Rule 1944, read with section 11AC of the Central Excise Act, 1944. The demand was confirmed by the Assistant Commissioner vide order in original dated 29.10.1998. The respondent filed an appeal to Commissioner (Appeals) against this order of the Assistant Commissioner. The Commissioner (Appeals) by the impugned order dated 01.02.2005 set aside the Assistant Commissioners Order on the ground that:
(a) The order in original dated 24.01.1997 was an Ex-Parte order.
(b) The duty demand for differential duty raised by Show Cause Notice dated 12.12.1997 is time barred inasmuch as the longer limitation period under proviso to section 11A(1) is not invokable in the circumstances of the case; and
(c) The demand is also not sustainable in view of the apex court judgment in the case of Indian Oxygen Ltd reported in 1988 (36) ELT 629 S.C. and in view of this judgment, the net price to an independent buyer at the factory gate would also be the assessable value in respect of the clearances made from factory to the depots and consignment agents.
1.3 Against this order of the Commissioner (Appeals), this appeal has been filed by the Revenue.
2. None appeared for the Respondent though a notice for hearing had been issued to them. In view of this, so far as the respondent are concerned, in accordance with rule 21 of the CESTAT Procedure Rule, the matter is being decided Ex Parte.
3. Heard Shri Ranjan Khanna, the Ld. DR, who assailed the impugned order by reiterating the grounds of appeal and pleaded that since, the issue on merits had been decided by the Assistant Commissioner vide order in original dated 24.01.1997 and that order of Assistant Commissioner had been upheld by the Commissioner (Appeals), Commissioner (Appeals), in respect of the quantification of the duty demand on finalization of provisional assessment cannot reopen the question of admissibility of discounts on the grounds that the Apex Court Judgment in the case of Indian Oxygen Ltd reported in 1988 (36) ELT 629 S.C. is applicable or that the order dated 24.01.1997 passed by the Assistant Commissioner is an Ex Parte Order, that the Commissioner (Appeals)s observation that extended period is not invokable, is incorrect as this is a case of finalization of the provisional assessment and the notice dated 12.12.1997 had been issued only for the purpose of quantification of the duty demand, subsequent to finalization of the provisional assessment and limitation period prescribed under section 11A is not applicable where the assessments are provisional. He, therefore, pleaded that the impugned order is not correct.
4. We have considered the submissions of the Ld. DR and have gone through the records of this case. The present proceedings originated when this Jurisdictional Superintendent Central Excise in pursuance of the Assistant Commissioners order 24.01.1997, finalizing the provisional Assessment, directed the Superintendent to quantify the duty demand. The Superintendent Central Excise quantified the duty demand on the basis of the Assistant Commissioners order dated 24.01.1997 and this Show Cause Notice had been issued only for the purpose of quantification, subsequent to finalization of provisional assessment. When the Assistant Commissioners Order dated 24.01.1997 has been upheld by the Commissioner(Appeals) vide order in appeal dated 17.09.2004 and Appeal and Appeal to Tribunal against that order had also been dismissed, the Commissioner (Appeals) could not reopen the finalization of provisional assessment on merits by observing that the order in original dated 24.01.1997 of the Assistant Commissioner finalizing the provisional assessment was Ex- Parte order or that the same was not correct. Moreover, since the assessments were provisional, the limitation period under section 11A(1) would not apply. Therefore, the Commissioner (Appeals)s Order that the Show Cause Notice dated 12.12.1997 is time barred, is also not correct. In view of this, we hold that the impugned order is not correct. The same is set aside and the Order-in-Original dated 29.10.1998 passed by the Assistant Commissioner is restored. The Revenues appeal is allowed.
(Dictated and pronounced in open court)
(S.K. Mohanty) (Rakesh Kumar) Member(Judicial) Member(Technical)
Neha
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