1988 (11) TMI 222 - AT - Central Excise

Issues Involved:
1. Competence of the appeal filed by the Superintendent of Central Excise (Judicial)
2. Tribunal's power to recall or review its earlier order
3. Inclusion of the value of packing materials in the assessable value of sulphuric acid
4. Time-barred demands under Section 11A of the Central Excises and Salt Act, 1944

Issue-wise Detailed Analysis:

1. Competence of the appeal filed by the Superintendent of Central Excise (Judicial):
The initial appeal was dismissed because it was signed by the Superintendent of Central Excise (Judicial) while the authorization was in favor of the Assistant Collector of Central Excise (Judicial). The Tribunal noted that "the appeal, having not been signed and filed by a duly authorized officer of the Collector, is not a competent appeal." However, a subsequent application for recalling/restoration of the appeal was filed, presenting the original authorization dated 4th August 1984, signed by the Collector of Central Excise, Madras, in favor of the Superintendent. The Tribunal acknowledged a typographical error and noted, "The bona fide of the appellants should not be doubted especially when the original records have been produced in the open court and the genuineness of which has not been doubted by the respondents."

2. Tribunal's power to recall or review its earlier order:
The Tribunal examined whether it had the authority to recall its earlier order dismissing the appeal. It was argued that there is no provision under the Central Excises and Salt Act, 1944, authorizing the Tribunal to review its earlier order. However, the Tribunal referred to Section 35-C(2) of the Act, which allows rectification of any mistake apparent from the record within four years. The Tribunal cited several judicial precedents, including the Supreme Court's judgment in Hukam Chand Mills v. Commissioner of Income-tax, which held that the Tribunal has the authority to rectify mistakes. The Tribunal concluded, "In view of the various judicial pronouncements discussed above, we are of the view that the Tribunal has got powers to rectify its own mistakes and rectification of the mistake does not amount to the review of the order."

3. Inclusion of the value of packing materials in the assessable value of sulphuric acid:
On the merits of the case, the respondents contended that the value of durable and returnable packing materials (porcelain jars and carboys) should not be included in the assessable value of sulphuric acid. The appellants (Revenue) argued that the containers were not returned by the buyers and thus should be included in the assessable value. The Tribunal referred to the larger Bench decision in Associated Cement Companies Ltd., which held that "it is not necessary that durable container must be actually returned by the buyer before an assessee could claim abatement." The Tribunal found that the respondents had issued circulars for the returnability of the containers and that endorsements on invoices indicated the same. Consequently, the Tribunal held, "The Revenue's argument that the respondent had paid sales-tax on the packing has got no relevance in the matter. Accordingly, we find no merit in the Revenue's appeal. The same is dismissed."

4. Time-barred demands under Section 11A of the Central Excises and Salt Act, 1944:
The respondents argued that the demands were time-barred under Section 11A of the Act. The show cause notices issued on 20-7-82, 15-12-82, 2-5-83, and 28-10-83 were scrutinized. The Tribunal noted that the learned Assistant Collector did not address the time-bar issue in his order. The respondents contended that there was no suppression of facts, and thus the extended period of limitation could not be invoked. The Tribunal did not find substantial evidence to support the invocation of the extended period of limitation and implicitly accepted the respondents' argument by dismissing the Revenue's appeal.

Conclusion:
The Tribunal exercised its inherent powers to rectify the typographical error in the authorization and restored the appeal. On the merits, it held that the value of durable and returnable packing materials should not be included in the assessable value of sulphuric acid and dismissed the Revenue's appeal, finding no merit in their arguments.

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