Customs, Excise and Gold Tribunal - Mumbai
Shankar Sahakari Sakhar Karkhana Ltd. vs Commissioner Of Customs And Central ... on 9 October, 2001
JUDGMENT
Jyoti Balasundaram, Member(J)
1. For reasons recorded below we dispense with the requirement of pre-deposit of duty and penalty and proceed to dispose off the appeals themselves with the consent of both sides as the issue in dispute is covered by various decisions of the Tribunal.
2. The duty alleged to be short paid was confirmed against the appellant by adopting normal price of molasses as Rs. 1,000/- per M.T. which was found to be the minimum cost of manufacture of molasses as per Chief Sugar Technologist of the Vasantdada Sugar Institute, Pune. Aggrieved by the orders of the adjudicating authority, adjudicating three notices issued to the appellant, the appellant preferred an appeal before the Commissioner (Appeals), who directed pre-deposit of the entire duty amount and penalty.)
3. On receipt of the stay order the appellants filed an application for modification which was also rejected and hence they filed a fresh application for modification citing the decision of the Tribunal in the case of Guru Nanak Refrigeration Corporation v. CCE 1996 (81) ELT 290, in which the Tribunal held that if the normal price under Section 4(1)(a) is available resort to Section 4(1)(b) cannot be had. However, the Commissioner (Appeals) rejected the modification application and dismissed the appeals on the ground of non-compliance with the statutory requirement of Section 35F of the Central Excise Act, 1944.
4. On hearing both sides and noting that the Tribunal in the case of Agasti Sahakari Sakhar Karkhana Ltd. v. CCE, Aurangabad 2001 (44) RLT 810, it has been held that ex-factory prices is required to be adopted unless it is established that it is manipulated price and also noting the case of Morinda Co-op. Sugar Mills v. CCE, Chandigarh 2001 (45) RLT 613 wherein it has been held that transaction value is acceptable and in such a situation the sale price of comparable goods is not to be adopted, we waive pre-deposit requirement and remand the case for decision on merits to the Commissioner (Appeals), who shall pass fresh orders after extending a reasonable opportunity to the appellant of being heard, without insisting on pre-deposit.
5. The appeals are thus allowed by remand.