2000 (1) TMI 110 - AT - Central Excise

Issues Involved:
1. Legality of the demand for the period from 1-1-1988 to 21-8-1988 without a show cause notice under Section 11A.
2. Relationship between the appellants and M/s. Nemaru Coiffure and its impact on the assessable value under Section 4.
3. Deductions claimed from the assessable value for secondary packing, turnover tax, average freight, insurance, octroi, handling charges, and cost of bought-out items.
4. Reassessment of the relationship and assessable value for the period from 1-4-1991 onwards.

Detailed Analysis:

1. Legality of the Demand for the Period from 1-1-1988 to 21-8-1988 Without a Show Cause Notice:
The appellants contended that the demand for Rs. 1,59,606.72 for the period from 1-1-1988 to 21-8-1988 was invalid as no show cause notice under Section 11A of the Act was issued. The Tribunal agreed, stating, "There is no legal and proper show cause notice raising the said demand and hence, we find that this demand is not legally sustainable." Consequently, this demand was set aside.

2. Relationship Between the Appellants and M/s. Nemaru Coiffure and Its Impact on the Assessable Value:
The department alleged that the appellants were related to their sole buyer, M/s. Nemaru Coiffure, affecting the assessable value under Section 4. For the period up to 31-3-1991, the appellants did not contest this relationship. Therefore, the assessable value was to be the price at which M/s. Nemaru Coiffure sold the goods, as per the ruling in order in appeal No. 20/89. However, for the period from 1-4-1991 onwards, the appellants argued that a new contract and changes in the composition of directors/partners altered the relationship. The Tribunal found that this issue was not adequately considered by the lower authorities and remanded it for re-evaluation, stating, "The matter needs to be remanded for re-consideration of this issue on merits to the Commissioner (Appeals) concerned."

3. Deductions Claimed from the Assessable Value:

a. Secondary Packing:
The appellants argued that secondary packing done by the buyer should not be included in the assessable value. The Tribunal agreed, stating, "If the buyer required to do extra packing at his own cost, cost of such secondary packing shall not be includible in the assessable value."

b. Turnover Tax and Octroi:
The appellants cited the Supreme Court decision in Bombay Tyre International, which allows deduction of local taxes from the sale price to arrive at the assessable value. The Tribunal accepted this, noting, "The issue is already well laid down in view of the decision of the Supreme Court in the case of Bombay Tyre International."

c. Average Freight and Insurance:
The appellants relied on a Chartered Accountant's certificate for these deductions. The Tribunal found this acceptable, stating, "The department has not accepted such certificate issued by the Chartered Accountant which was submitted in this respect and on this account also the order impugned has very grossly erred."

d. Handling Charges:
The appellants argued that these were post-manufacturing expenses and should not be included in the assessable value. The Tribunal agreed, noting, "These therefore, cannot be considered as valid element of the assessable value."

e. Cost of Bought-Out Items:
The appellants contended that items like plastic measuring cups and hand gloves, bought from the open market, should be excluded from the assessable value. The Tribunal agreed, citing the decision in Diamond Clock Manufacturing Co., and stated, "We find that the appellants are entitled to deduction for these bought out items of dispute mentioned above of the seven items on which they have sought for deduction from the assessable value."

4. Reassessment for the Period from 1-4-1991 Onwards:
The Tribunal noted that the lower authorities had not adequately considered the new contract and changes in the relationship between the appellants and M/s. Nemaru Coiffure for the period from 1-4-1991 onwards. The case was remanded for re-evaluation, with the Tribunal stating, "The matter needs to be remanded for re-consideration of this issue on merits to the Commissioner (Appeals) concerned."

Conclusion:
The Tribunal set aside the demand for the period from 1-1-1988 to 21-8-1988 due to the absence of a show cause notice. It allowed deductions for secondary packing, turnover tax, average freight, insurance, octroi, handling charges, and cost of bought-out items. The issue of the relationship between the appellants and M/s. Nemaru Coiffure for the period from 1-4-1991 onwards was remanded for re-evaluation. The appeals were disposed of in these terms.

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