1987 (2) TMI 175 - AT - Central Excise

Summary

Issues Involved:
1. Assessable value of goods and inclusion of secondary packing and delivery charges.
2. Application of res-judicata.
3. Time-barred demand under Rule 10 read with Rule 173-J.
4. Applicability of Rule 10-A versus Rule 10.
5. Provisional versus final assessment.

Issue-wise Detailed Analysis:

1. Assessable Value of Goods and Inclusion of Secondary Packing and Delivery Charges:
The appellant had been submitting price lists under Rule 173-C of the Central Excise Rules from 15-3-1973 to 30-9-1975, excluding secondary special packing and delivery charges. The department issued a show cause notice on 3rd July 1976, questioning why these charges should not be included in the value of the goods and why differential duty should not be demanded under Rule 10-A.

2. Application of Res-judicata:
The appellant argued that the issue of assessable value had already been decided by the High Court of Allahabad on 14-5-1974, which held that the price declared by the appellant was the assessable value. The appellant contended that the department was estopped from raising the issue again under the principles of constructive res-judicata, as per Explanation IV to Section 11 of the CPC. The tribunal agreed, noting that the High Court's decision covered current assessments as well and that the department could have raised the issue of packing and delivery charges during the High Court proceedings but did not.

3. Time-barred Demand under Rule 10 read with Rule 173-J:
The appellant argued that the demand was time-barred under Rule 10 read with Rule 173-J, as they had been submitting price lists and R.T. 12s without objection from the department until a letter dated 20-1-1976. The tribunal noted that the department did not raise any objections for a long period, implying that the price lists should be deemed approved, thus making the demand time-barred.

4. Applicability of Rule 10-A versus Rule 10:
The appellant argued that Rule 10-A, a residuary provision, could not apply as the case fell under Rule 10. The tribunal agreed, stating that the declaration of value in the price lists could not be termed a mis-statement, and the department's delay in raising demands negated the applicability of Rule 10-A.

5. Provisional versus Final Assessment:
The department argued that the collection of duty should be deemed provisional as the price lists were not approved, and R.T. 12s were not assessed. The tribunal disagreed, noting that the High Court's interim order allowed the department to raise demands, which it did not do, thus making the assessments final.

Conclusion:
The tribunal allowed the appeal on the initial plea of res-judicata, stating that the matter of assessable value had already been decided by the High Court of Allahabad, and the department was estopped from raising the issue again. Consequently, the tribunal did not find it necessary to address the other pleas raised by the appellant. The appeals were allowed.