Customs, Excise and Gold Tribunal - Delhi
Kodak India Ltd. vs Commissioner Of Customs Central Excise on 28 July, 2000
Equivalent citations: 2000(121)ELT531(TRI-DEL)
ORDER
K. Sreedharan, J. (President)
1. In this appeal, as-sessee challenges the correctness of order-in-appeal No. 113-CE/BPL/2000 dated 24-1-2000. By that order, appellate authority confirmed order-in-original No. 66/CEx/DEM/AC dated 16-3-98 passed by Assistant Commissioner, Central Excise, Gwalior.
2. Short facts necessary for the disposal of the appeal are as follows.
Assessee was engaged in the manufacture of chemical preparations for photographic use. They filed price lists in part IV on 14-6-94 claming deduction on account of trade discount; additional discount, turnover discount, expenses on account of freight; transit insurance; octroi and other taxes; interest on receivables, secondary packing and central excise duty. The deduction claimed by the assessee was disputed by the department and notice dated 24-2-94 was issued calling upon them to show cause why turnover discount, interest on receivables and secondary packing should not be denied. Assistant Commissioner who went into the issue disallowed turnover discount, interest on receivables and cost of card board boxes as per order-in-onginal No. 12/94, dated 17-10-94. However, the assessee's claim for deduction on account of wooden box packing was allowed. Aggrieved by the said order of the adjudicating authority, namely, order-in-onginal No. 12/94 dated 17-10-94, assessee went in appeal. That appeal is still pending. According to learned consultant representing the appellant before us, appeals filed during the years 1994 and 1995 have been transferred from the office of the Commissioner, Bhopal to Commissioner (Appeals), Jaipur. Those appeals have not been heard and disposed of by the Commissioner (Appeals), Jaipur.
3. While the matter stood as stated above, Range Superintendent quantified the differential duty payable by the assessee at Rs. 2,95,605.94, as per his order dated 21-12-96. Since assessee did not pay that amount, a show cause notice bearing No. CEX/Kodak/Prev/R 1/97/927 dated 5-6-97 was issued requiring the assessee to show cause why duty amounting to Rs. 2,95,605.94 should not be demanded from them under Section 11A of the Central Excise Act. In reply to that notice, assessee contended that the claim is not maintainable because Order-in-Original No. 12/94 dated 17-10-94 pending in appeal before Commissioner (Appeals). Assistant Commissioner who issued the show cause notice did not pay any heed to this contention of the assessee and confirmed the demand holding that assessee did not obtain a decision from the Commissioner (Appeals) in spite of the expiry of the time granted to him. That order of the Assistant Commissioner namely, order-in-original No. 66/98 dated 16/3/98 was taken up in appeal before the Commissioner (Appeals), Bhopal. Along with the appeal, assessee moved application for stay of recovery of the amount claimed in the original order. Commissioner dismissed that application by order dated 23-4-99 and directed the appellant to deposit the entire amount within two weeks therefrom. On the ground of non-compliance with the order of stay, Commissioner (Appeals) dismissed the appeal pending before him. Assessee challenged the action of the Commissioner before this Tribunal in E/1941/99-A. That appeal was allowed by us vide final order No. 1567/99-A dated 9-11-99 and the matter was remitted back to the adjudicating authority for de novo disposal after affording the assessee a reasonable opportunity of being heard in the matter. In the light of that order, it was the adjudicating authority to pass fresh orders and Commissioner was not to pass any order in the appeal pending before him. Purporting to be as a follow up action of the order passed by us, the Commissioner has passed the impugned order on 24-1-2000. When the matter was sent back to the adjudicating authority for de novo disposal, Commissioner was clearly in error in passing the impugned order. On that sole ground, the order of the Commissioner under challenge has only to be reversed.
4. Assessee's claim for deduction on account of turnover discount, interest on receivables, expenses incurred on card board packing was disallowed by order-in-original No. 12/94 dated 17-10-94. Against that order, assessee preferred an appeal. That appeal has not been disposed of so far by the concerned Commissioner. While that appeal was pending, the jurisdictional Superintendent quantified the differential duty. For recovering that duty, steps should have been taken by the department as provided by Section 11 of the Central Excise Act. Instead, a show cause notice was issued under Section 11A of the Act. Persuant to that notice, an adjudication order seems to have been passed and that order has not been upheld by the Commissioner. We are not in a position to approve this action resorted to by the authorities below. Quantification of differential duty should be subject to the final decision on the appeal filed against order-in-original No. 12/94 dated 17-10-94. For such a quantification, show cause notice under Section 11A was not at all warranted. Be that as it may, in the instant case, when in appeal E/1941/99-A, this Tribunal remitted the matter to the adjudicating authority for de novo disposal, Commissioner had no jurisdiction to pass the impugned order.
5. In view of what has been stated above, we quash order-in-appeal No. 113-CE/BPL/2000, dated 24-1-2000 passed by Commissioner (Appeals). Order-in-original No. 66/98, dated 16-3-1998 had already been quashed by us in the earlier appeal. We direct the Commissioner (Appeals) to dispose of the assessee's appeal against order-in-original No. 12/94 dated 17-10-94 passed by Assistant Commissioner, Central Excise, Gwalior as expeditiously as possible at any rate within a period of four weeks from the date of receipt of a copy of this order.
6. Learned Consultant submitted that the entire amount claimed in this proceeding, namely, Rs. 2,95,605.94 has been remitted by the assessee. This amount will be adjusted towards the tax liability depending upon the outcome of the appeal filed against order-in-appeal No. 12/94 dated 17-10-94.