2007 (9) TMI 521 - AT - Central Excise

Summary

Issues involved:
Valuation of goods for duty calculation u/s Section 4, Time limitation for review order u/s Section 35E.

Valuation of goods for duty calculation u/s Section 4:
The demand raised against the appellant on the ground of valuation was initially dropped by the Asst. Commissioner, stating that the duty paid by adopting the assessable value for sales to wholesale buyers was correct, even if sales were made to retailers. However, the Revenue appealed against this decision, leading to the Commissioner (Appeals) reversing the initial order. The appellant contended that the assessable value should be based on normal sale prices at the factory gate as per Section 4, even for occasional sales to retailers at a higher price.

Time limitation for review order u/s Section 35E:
The appellant argued that the appeal before Commissioner (Appeals) was time-barred as the review order was passed after one year from the date of the initial order, contrary to the provisions of Section 35E. Citing the Supreme Court's decision in Collector of CE v. M.M. Rubber Co., it was emphasized that the period of one year for review under Section 35E should be calculated from the date of the original order, not the date of its receipt by authorities. Applying this precedent, it was found that the Commissioner's review order, issued after the one-year limit from the date of the initial order, was invalid and ineffective.

Conclusion:
Based on the above analysis, the Tribunal set aside the impugned order and allowed the appeal in favor of the appellant, citing the Commissioner's review order as being time-barred.