1998 (6) TMI 139 - AT - Central Excise

Summary

Issues:
1. Condonation of delay in filing appeal by Assistant Collector.
2. Liability to pay duty on cement including the value of gunny bags.
3. Claim of deduction towards the cost of gunny bags.
4. Application of legal provisions regarding appeals under Section 35E.

Condonation of Delay in Filing Appeal:
The appeal challenged an order allowing a departmental application under Section 35E(4) and holding the appellant liable to pay duty on cement, including the value of gunny bags. The Assistant Collector's decision was initially in favor of the appellant, but the Collector (Appeals) set it aside for a de novo decision after hearing and verification of facts. The appellant raised a preliminary objection regarding the delay in filing the appeal by the Assistant Collector, which was condoned by the Collector. The appellant argued that condonation of delay is not permissible under Section 35E for appeals filed by the department on the direction of the Collector or Central Board of Excise & Customs. However, the Tribunal found that provisions under sub-section (4) of Section 35E allow for such applications to be heard as appeals, including the power to condone delay.

Liability to Pay Duty on Cement Including Value of Gunny Bags:
The main issue revolved around the liability of the appellant to pay duty on cement, considering the value of gunny bags in which the cement was packed. The appellant claimed that the cost of gunny bags should be excluded from the price of cement as they were durable and returnable, with an arrangement for their return with the consignment agent. Despite the Assistant Collector's initial acceptance of this claim, the Collector (Appeals) reversed the decision, ordering a de novo decision after verifying relevant facts. The appellant contended that the bags were eligible for the benefit claimed, citing precedents and the Collector (Appeals)'s acknowledgment of their durability and returnability. The Tribunal ultimately set aside the Collector (Appeals)'s decision and allowed the appeal.

Claim of Deduction Towards the Cost of Gunny Bags:
The appellant sought a deduction for the cost of gunny bags used in packing cement, arguing that they were durable and returnable, as established by previous judgments. The Tribunal noted that the issue was settled by various decisions, including those of the Supreme Court and the Tribunal itself. The Collector (Appeals) had also found in favor of the appellant on the merits of the claim. Consequently, the Tribunal concluded that the direction for de novo adjudication was unnecessary, and the appeal was allowed.

Application of Legal Provisions Regarding Appeals Under Section 35E:
The Tribunal addressed the application of legal provisions concerning appeals under Section 35E, emphasizing that the provisions of sub-section (4) allow for applications to be treated like appeals against adjudicating authority orders. This includes the power to condone delays, as applicable to appeals. After resolving the preliminary objection regarding the appeal's maintainability due to a time bar, the Tribunal focused on the merits of the case, noting the alignment of both parties and previous decisions on the issue. The Tribunal ultimately set aside the impugned order and allowed the appeal, considering the established legal precedents and the Collector (Appeals)'s findings in favor of the appellant.