2011 (4) TMI 1012 - AT - Central Excise

Valuation of goods under central excise - the respondents had been clearing their product in glass bottles after making payment of duty and removing them to the duty paid godown situated adjacent to their factory. The duty paid stocks so removed were then sent to the customers in lorries owned by the respondents or engaged on hire on long term basis. For that purpose, the goods were delivered to the customers/dealers at higher price and cash memos were issued while unsold stock and empty bottles were brought back to the company s godown. - Commissionier allowed six deductions from the value. Held that - No justification for the Commissioner to decide the claim regarding six deductions by answering the same in favour of the assessee. - in the case of Madras Rubber Factory Ltd. Case (1995 -TMI - 44005 - SUPREME COURT OF INDIA) , held that it is for the assessee to decide where to sell his goods. He can choose to sell his goods at the gate that is at the place of removal. He may choose to sell through his selling organisation where the goods are sold in the course of wholesale trade through depots outside the place of removal, the assessee would independently incur expenses not only for the transport of the goods from the place of removal to the depots but also on maintaining and running of depots but these expenses according to the Union of India v. Bombay Tyres International (1983 -TMI - 41501 - SUPREME COURT OF INDIA) are on the same par as after sale with reference to the service charge and advertisement charges and hence cannot be deducted - Decided in favor of revenue by way of remand.

Issues Involved:
1. Deductions claimed by the assessee.
2. Non-imposition of penalty.
3. Application of the doctrine of merger.
4. Admissibility of deductions under six specific heads.

Issue-Wise Detailed Analysis:

1. Deductions Claimed by the Assessee:
The respondents, engaged in the manufacture and sale of aerated water, claimed various deductions before arriving at the assessable value under Section 4 of the Central Excise Act. The deductions included excise duty, sales tax, transportation charges, container charges, service charges, and trade discounts. The Department disagreed with these claims and issued show cause notices for different periods, leading to multiple rounds of litigation.

The Tribunal initially allowed some deductions and remanded the matter for reconsideration of others. The Commissioner, upon remand, reconfirmed the demand for deductions under four heads: rent for the duty-paid godown, depreciation for bottles, quantity discount given in kind, and expenditure on retrieved bottles. These decisions were challenged by the respondents but ultimately upheld by the Tribunal and the Apex Court.

2. Non-Imposition of Penalty:
The Department contended that there was clear suppression of facts by the respondents, justifying the imposition of a penalty. However, the Commissioner did not impose any penalty in the impugned order. The Tribunal, in its earlier decisions, did not address the issue of penalty, focusing instead on the admissibility of deductions.

3. Application of the Doctrine of Merger:
The Department's appeal was initially dismissed by the Tribunal, which applied the doctrine of merger, holding that the order dated 14-3-2001 had merged with the Tribunal's earlier order dated 24-1-2002. The Apex Court, however, ruled that the doctrine of merger did not apply because the subject matter of the appeal filed by the assessee was limited to the disallowance of two out of eight deductions. The Tribunal was directed to hear the Department's appeal afresh.

4. Admissibility of Deductions Under Six Specific Heads:
The Commissioner allowed deductions under six heads, which were contested by the Department. These heads included:
- Mazdoor and Cartage expenses
- Service charges including handling and establishment costs
- Shell repair costs
- Interest on containers
- Trade discounts given to customers
- Other trade discounts

The Department argued that these deductions were not justified as similar claims were disallowed for the previous period, and no new material was presented to support the deductions for the relevant period. The Tribunal agreed with the Department, emphasizing that judicial discipline required the Commissioner to follow the Tribunal's earlier decisions unless new evidence was presented.

Conclusion:
The Tribunal concluded that the Commissioner erred in allowing the deductions under the six heads without any new material evidence. The appeal by the Department was allowed, the impugned order was set aside, and the matter was remanded to the adjudicating authority for fresh consideration in light of the Tribunal's observations. The adjudicating authority was directed to dispose of the matter within six months.

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