2017 (12) TMI 383 - AT - Central Excise

Valuation - to be valued under section 4 or 4A? - Revenue found that the appellant had been packing and selling their product in 2 kg and 5 kg packings and clearing the same after putting in cardboard cartons and gunny bags - in the SCN, the allegation is that the packing of 2 kg and 5 kg was intended for bulk sale to certain buyers for their industrial use or to the panwala for use in making of pan and for selling smaller quantity to its consumers - the appellant have categorically denied that the packages are sold to the gutka manufacturers - Held that - it is necessary for lower authorities to verify the facts afresh in the first instance to establish clear factual matrix in the case - matter is remanded back to the original adjudicating authority to clearly establish the facts from the statutory and other records and thereafter pass a fresh order - appeal allowed by way of remand.

Issues: Appeal against impugned order passed by Commissioner (Appeals) regarding Central Excise duty assessment under Section 4A, applicability of SSI benefit, abatement under Notification No.13/02-(NT), retail sale classification, wholesale package definition, Tribunal's judgment reliance, disputed facts, remand for fresh adjudication.

Analysis:

1. Central Excise Duty Assessment under Section 4A:
The appellant claimed SSI benefit under Notification No.8/02-CE until 2002-03 and started assessing goods under Section 4A from 2003-04. The Revenue disputed this assessment method and proposed duty payment based on Section 4 instead of Section 4A. The lower authorities confirmed the duty demand, interest, and penalty under Section 11AC. The Tribunal noted the dispute regarding the assessment method and remanded the matter for fresh adjudication to establish clear facts and provide a fair opportunity to the appellant.

2. Applicability of SSI Benefit and Abatement:
The appellant calculated the exemption limit under Notification No.8/02-CE and claimed abatement under Notification No.13/02-(NT). The Revenue contested the abatement calculation and assessed the total clearances differently, leading to a duty demand. The Tribunal did not provide a final decision on this issue but directed the lower authorities to carefully examine all aspects, including the abatement calculation, during the fresh adjudication process.

3. Retail Sale Classification and Wholesale Package Definition:
The dispute arose regarding whether the packages of 2 kg and 5 kg were intended for retail sale or wholesale supply to industrial users. The appellant argued that these packages were for sale to dealers and not wholesale packages. The Tribunal observed conflicting views between the lower authorities and the appellant's submissions. It directed the adjudicating authority to verify the facts afresh, considering the nature of sales and the packaging intended purpose.

4. Tribunal's Judgment Reliance and Disputed Facts:
Both parties relied on previous judgments to support their arguments. The appellant cited a Tribunal's decision and a Supreme Court judgment, while the Revenue pointed out a Supreme Court decision setting aside a Tribunal's judgment. The Tribunal highlighted the need for a clear factual matrix and instructed the lower authorities to reexamine the case, considering all submissions and judicial pronouncements.

5. Remand for Fresh Adjudication:
Ultimately, the Tribunal disposed of the appeal by way of remand, emphasizing the importance of establishing clear facts, examining disputed issues, and providing a fair opportunity for the appellant to present their case. The lower authorities were instructed to reevaluate the case, including the limitation aspect and legal interpretation, before passing a fresh order with clear findings based on statutory records and judicial precedents.

This detailed analysis of the judgment highlights the key issues involved in the appeal against the Commissioner (Appeals)'s order, the arguments presented by both parties, and the Tribunal's decision to remand the case for fresh adjudication to resolve the disputed facts and legal interpretations effectively.

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