2001 (11) TMI 472 - AT - Central Excise

Summary

Issues:
Late receipt of the demand-cum-show cause notice affecting limitation period for demand, inclusion of packing forwarding and other charges in assessable value, validity of Commissioner (Appeals) decision.

Analysis:

Late Receipt of Notice and Limitation Aspect:
The case involved the appellant challenging the findings of the Commissioner (Appeals) regarding the late receipt of the demand-cum-show cause notice, impacting the limitation period for the demand. The Department contended that the notice was despatched on a specific date and deemed served unless proven otherwise. However, the respondent argued that the notice was received after two years, rendering the entire demand time-barred. The Tribunal noted that the issue of late receipt was not raised before the adjudicating authority initially. Consequently, the matter was remanded to the Commissioner (Appeals) to verify the factual position on the late receipt and make a determination on the limitation aspect.

Inclusion of Charges in Assessable Value:
Another issue in the case was the inclusion of packing forwarding and other charges in the assessable value of the product. The Department argued that these charges should be included, as they were not questioned before the adjudicating authority and were verifiable matters. The Commissioner (Appeals) had relied on a previous Tribunal decision but failed to address the dutiability of these charges specifically. The Tribunal observed that the charges in question were being collected by the assessee and were recorded, with no rebuttal provided. Merely being flagged by an audit did not exempt these charges from being included in the assessable value. Therefore, the Tribunal remanded the matter for a detailed examination by the Commissioner (Appeals) on the inclusion of these charges in the assessable value.

Validity of Commissioner (Appeals) Decision:
The validity of the Commissioner (Appeals) decision was also a point of contention. The respondent argued that the decision was valid, citing reliance on a Tribunal case. However, the Tribunal found that the case cited was not directly applicable to the current situation, as the circumstances differed regarding the investigation into the charges in question. Consequently, the Tribunal allowed the appeal by remanding the case to the Commissioner (Appeals) for further review and clarification on the issues raised, emphasizing the need for a detailed examination and a speaking order on both the limitation aspect and the dutiability of the additional expenses collected by the assessee.