2017 (5) TMI 1328 - AT - Central Excise

Valuation - Dharmada/Charity service - includibility - whether amount of Dharmada/Charity is includible in the assessable value of the excisable goods sold by the appellant? - Held that - there was nothing more to decide by the adjudicating authority except re-quantification of the duty extending benefit of cum duty price which was ordered by this tribunal by applying the correct rate of duty therefore no discretion was left to the adjudicating authority to decide the issue a fresh on the merit - appellant is entitle for the cum duty benefit and also rate of duty applicable is @ 50% during the period for July to February, 2000 and 40% for the period for March, 2001 to Jun, 2001 - appeal allowed by way of remand.

Summary

Issues involved:
- Inclusion of Dharmada/Charity in the assessable value of excisable goods
- Availability of cum duty benefit to the appellant
- Correct rate of duty application
- Imposition of penalty under Section 173Q

Inclusion of Dharmada/Charity in the assessable value of excisable goods:
The appellant, engaged in manufacturing excisable goods, had recovered Dharmada/Charity from customers and questioned its inclusion in the assessable value. The Tribunal had previously ruled in favor of including Dharmada/Charity in the assessable value. However, the matter was remanded for re-computation of duty with cum duty benefit and correct rate of duty application. The Commissioner confirmed the demand without extending cum duty benefit or considering the correct rate of duty, leading to the appellant's appeal.

Availability of cum duty benefit and correct rate of duty application:
The appellant argued that the Tribunal's earlier order had settled the availability of cum duty benefit for them, which the Commissioner failed to follow. Additionally, the correct rate of duty was clarified by the Tribunal and another jurisdictional authority, applying 50% for July to February 2000 and 40% for March to June 2001. The Commissioner's decision to collect duty at a higher rate was deemed incorrect, as the rate of duty was established and accepted in previous orders without any dispute.

Imposition of penalty under Section 173Q:
The appellant contested the imposition of a penalty of ?1 Lakh under Section 173Q, highlighting that a penalty of ?10,000 was previously imposed and unchallenged. They argued that the increased penalty was unwarranted, especially considering the previous penalty being set aside. The appellant requested the penalty to be set aside, emphasizing the lack of justification for the higher penalty amount.

The Tribunal, after considering submissions from both sides, found that the Commissioner's failure to comply with the Tribunal's directions regarding re-quantification of duty with cum duty benefit and correct rate of duty application amounted to contempt of the Tribunal's order. The Tribunal reiterated the correct rate of duty as 50% for July to February 2000 and 40% for March to June 2001, based on previous orders and accepted practices. The appellant was deemed entitled to the cum duty benefit and the correct rate of duty, directing the adjudicating authority to re-quantify the duty accordingly. The appeal was allowed, remanding the case to the adjudicating authority for further action.