2009 (11) TMI 750 - AT - Central Excise

Summary

Issues:
Revenue appeal against OIA for refund claim period
Includibility of cost of secondary packing in assessable value
Finality of decision on secondary packing cost for specific periods
Payment of duty under protest and refund claim

Analysis:
The appeal before the Appellate Tribunal CESTAT Ahmedabad involved the Revenue challenging the Order in Original (OIA) dated 25-8-97 passed by the Commissioner (Appeals) regarding a refund claim for a specific period. The issue revolved around the includibility of the cost of secondary packing in the assessable value of goods cleared by the respondents, who were engaged in glass manufacturing. The Revenue contended that evidence showed secondary packing was provided even in cases not requested by distant customers, citing a Supreme Court decision supporting the inclusion of secondary packing cost in assessable value. The Department argued they could file an appeal for a different period despite accepting a Tribunal order for another period.

The respondent's advocate argued that the matter of secondary packing cost's includibility had attained finality for periods before March 1996 and after September 1999, as the Department had accepted Tribunal orders. The refund claim period fell between these finalized periods, and the respondents paid duty under protest during this time, even after a favorable Commissioner (Appeals) order. The advocate also referenced a Larger Bench decision supporting duty payment under protest in the absence of an adverse order.

The Tribunal considered both arguments and noted that the refund claim period was sandwiched between periods where the secondary packing cost issue had been finalized. The Tribunal emphasized that no adjudication order existed for the relevant period due to duty being paid under protest. Finality was reached when the Tribunal passed specific orders for prior and subsequent periods, setting aside duty demands and confirming non-includibility of secondary packing cost. Therefore, the Tribunal concluded that the Department could not reopen the issue of secondary packing cost includibility for the refund claim period, as the matter had already attained finality. Consequently, the Tribunal found no merit in the Revenue's appeal and rejected it accordingly.