Custom, Excise & Service Tax Tribunal
M/S. Modi Vanaspati Mfg Co vs Cce, Ghaziabad on 6 February, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Court No.II
E/Stay 703/2012 in E/Appeal No.596/2012
(Arising out of order in appeal No.200/CE/Gzb/2011-12 dated 17.11.2011 passed by the Commissioner of Customs & Central Excise(Appeals), Ghaziabad )
Date of Hearing: 6.2.2013
For Approval and signature:
Honble Mrs. Archana Wadhwa, Member Judicial
Honble Mr.Sahab Singh, Technical Member
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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 would 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
Department Authorities?
M/s. Modi Vanaspati Mfg Co Appellants
Vs
CCE, Ghaziabad Respondent
Appeared for the Appellant: Shri Prabhat Kumar, Advocate Appeared for the Respondent: Shri A.K. Jain,,Jt CDR Coram: Honble Mrs. Archana Wadhwa, Member Judicial Honble Mr. Sahab Singh, Member Technical Stay ORDER 56229/2013 Final ORDER 55586/2013 Per Archana Wadhwa:
As the appellant has given a bank guarantee of Rs. 10 lakhs which is still live, we dispense with the condition of pre-deposit of duty and proceed to decide the appeal itself in as much as the dispute relates to valuation of factual aspects.
2. After hearing both the sides for sometime, we note that the Revenue has added the distribution charges collected by the appellants from their buyers, in the assessable value of vegetable products manufactured by them. On the other hand, the appellants claim is that such distribution charges are on account of octroi discount, bank interest charges on finished goods etc. which are eligible deductions in terms of declaration of law by the Honble Supreme Court in the case of MRF Ltd.
3. It is seen that identical dispute was initially raised by the appellant for the period May 1981 to November, 1981. The demand raised against them was confirmed by the original authority also and an appeal was filed by the Commissioner (Appeals). The appellant also challenged the order of the Assistant Commissioner before the Honble Delhi High Court which was initially disposed of vide their order dated 23.7.2001. The Honble High Court remanded the matter to Commissioner (Appeals) for decision in the light of the direction contained therein. Though the matter was remanded in 2001, the same is still pending before the Commissioner (Appeals). The appellants contention is that without first deciding that matter in terms of the direction of the Honble High court, which is on the merits of the case, the lower authorities have initiated proceedings and confirmed the same for the subsequent as also for the prior period involved in the present appeal. In as much as the Delhi High Court has given clear direction and has made observations on merits of the case, it was the duty of the Revenue to first decide the remanded matter than the present matter. In any case submits the learned Advocate that their stand of distribution charges being linked to discount, bank interest was got verified by the original authority from their jurisdictional Central Excise authorities. After verifying the records maintained by them, a detailed report was submitted by the Superintendent giving the details of such expenses having been incurred by the appellants during the various periods. The original adjudicating authority has not accepted the above report on the ground that it is not clear whether the same relates to the octroi charges.
4. We are of the view that if there was any doubt in the mind of adjudicating authority as regards the said report, instead of dismissing the appeal all together, he should have got comments from officials who prepared the said report and would have directed the assess to submit the correct position. We also note that it stands mentioned in the said report that the difference of sale price in depot is on the said counts. The contention of the appellant that all the expenses shown in the said report relate to the sale price at depot and takes into consideration the depot sale.
5. We note that the above report does not stand considered by the original authority. As such, we set aside the impugned order and remand the matter to the original authority for fresh decision after taking into consideration the report and any further verification which he may seek from the appellant or from the jurisdictional excise authority or the person who prepared the said report. The stay petition as also the appeal gets disposed of in the above manner.
(Order dictated and pronounced in the open Court.) (ARCHANA WADHWA) Member Judicial MPS* (SAHAB SINGH) Member Technical ??
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