Customs, Excise and Gold Tribunal - Delhi
Sarajya Cement India Ltd. vs Cce on 18 June, 1998
Equivalent citations: 1998(78)ECR833(TRI.-DELHI)
ORDER K. Sankararaman, Member (T)
1. The appeal is against the order-in-appeal dated 7/8.2.1994 passed by the Collector of Central Excise (Appeals). New Delhi allowing the departmental application filed under Section 35E(4) and holding the appellant herein, M/s Swarajya Cement India (P) Ltd. to be liable to pay duty on their product, cement after including the value of gunny bags in which the same was being packed. The claim of the appellant which was allowed by the Assistant Collector was that the gunny bags were durable and returnable and there was an arrangement between them and their consignment agent for return of the bags and hence their cost was excludible from the price of cement for arriving at the assessable value of the latter. The Assistant Collector's decision accepting the claim of the respondent was set aside by the Collector (Appeals) with the direction for de novo decision after hearing them and after verification of relevant facts and pass a speaking order.
2. On behalf of the appellant, Shri Naveen Mullick, learned Counsel raised a preliminary point about the appeal having been filed by the Assistant Collector on the authorisation of the Collector beyond the permitted period. There is a delay of 10 days on the part of the Assistant Collector in filing the appeal and this delay was condoned by the latter. Shri Mullick contended that the facility of condonation of delay is not available under Section 35E for appeals filed by the department on the direction of either .the Collector or the Central Board of Excise & Customs on a review of the orders in question to examine their legality and propriety. Such condonation is provided for only in Section 35 in respect of appeals filed before the Collector (Appeals). Proceeding further, learned Counsel submitted that it has been settled, in a: long catena of decision that jute bags for packing of cement are durable and returnable packing eligible for the benefit claimed by the appellant. He referred to the Judgment of High Court of Delhi in the case of J.K. Cement Works v. Union of India . He added that even the Collector (Appeals) while disposing of the appeal had given a finding that the jute bags are durable and returnable but all the same he has set aside the order of the Assistant Collector and.remanded the matter for de novo decision after granting opportunity of hearing and pass a fully speaking adjudication order after ascertaining and verifying all relevant facts. It was contended by Shri Mullick that all relevant facts mat have been ordered to be verified by the Collector (Appeals) in his remand order stand verified and there is no dispute about this position and the purpose of remand is not clear. He pleaded that in the circumstances the appeal be allowed.
3. Shri M. Ali, JDR stated that he would confine his argument to the merits of the issue involved regarding the deduction claimed towards the cost of gunny bags. He conceded that the issue stands concluded by the Judgment of the Supreme Court in Mahalaxmi Glass Works which had been followed by the Tribunal in the case of Excel Glass Ltd., order No. 385/96-A, dated 18.12.1996 as well as 2510 & 2511/96-A, dated 27.7.1996. In these decisions it had been held that gunny bags used for packing of bottles are durable and returnable. There had been arrangement and agreement for return of the bags to the manufacturer.
4. We have considered the submissions. On the preliminary issue of the appeal by the Assistant Collector to the Collector (Appeals) being barfed by limitation and hence not condonable by that authority as there is no express provision under Section 35E for affording that relaxation, we find that the provisions of Sub-section (4) provide a complete answer to this objection. It is provided therein that an application by the authorised officer to the Collector (Appeals) shall be heard as if that were an appeal made against the order of the adjudicating authority and that the provisions of the Act regarding the appeals including the provisions of Sub-section (4) of Section 35B shall apply to such applications. Thus whatever course is open to the appellate authority while disposing of an appeal would apply pan' passit to an application made under Section 35E and this would include the power to condone the delay also.
5. Having disposed of the preliminary objection regarding the non-maintainability of the appeal before the Collector (Appeals) on the ground of time bar, we turn to the merits of the question. On this we find that both sides are in agreement that the issue stands covered by several decisions of the Tribunal, High Court and Supreme Court. In fact the Collector (Appeals) also has given a finding on merits in favour of the present appellant who was respondent before him. The scope of the direction given in the appellate order for carrying out de nova adjudication after granting opportunity of hearing and considering all aspects afresh and passing a fully speaking order was not really called for in the circumstances of the case. The impugned order is set aside and the appeal is allowed.
(Dictated and pronounced in the open Court).