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TMI Blog1987 (5) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... paise per Kg. and on snuff, whose value exceeded Rs. 10/- per Kg., was Rs. 2/- per Kg. The appellant had declared in AR-1, the value at Rs. 10/- per Kg. Besides this, the appellant had charged .02 paise per Kg. on account of Dharmada (charity) receipts, which was part of the invoice. The Superintendent of Central Excise, Madras had issued a show cause notice No. 15/77, dated 30-3-1977 to the effect that the appellant had cleared 6788.750 kgs. of snuff for the period 1-3-75 to 30-9-1975 and had to pay a duty at Rs. 8,485.91 and had also cleared from 1-10-1975 to 4-3-1977, 3,0812 kgs of snuff and the duty was to be paid at Rs. 3,8515.30 and the total duty works out at Rs. 75,201 whereas the appellant had paid duty at Rs. 28,200.36. As a result the appellant did not pay a sum of Rs. 47,00.14 by way of Central Excise Duty and the appellant had contravened provisions of Rule 9 read with Rule 52 of the Central Excise Rules. The Ld. Assistant Collector had added 0.2 paise in the assessable value of the goods and had charged Central Excise duty and had created a demand of Rs. 47,001.14. Being aggrieved from the aforesaid order the appellant had filed an appeal to the Appellate Collector. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Dharmada receipts are taxable. He has pleaded that the Appellate Collector of Central Excise has passed order No. 1258/77, dated 28-10-1987 and in the said appeal the appellant had objected to the levy of Central Excise duty after adding charity receipts; and the Ld. Appellate Collector of Central Excise had confirmed the finding in this regard and the appellant did not file any appeal or Revision Application against this order and that portion of the order had become final. The other ground in the said appeal was towards freight and the Appellate Collector of Central Excise had remanded the matter for de-novo adjudication and had further directed that the principles of natural justice should be observed. Shri P.K. Ajwani states that the order in respect of charity has become final and amounts to resjudicata, the appellant cannot now agitate before the Tribunal. He has referred to Section 4 of the Central Excises and Salt Act, 1944 and also Section 2(10) of Sales of Goods Act. He has also referred to a judgment of the Tribunal in the case of Hindustan Shipyard Ltd. v. Collector of Customs, Madras vide Order No. 119/87A, dated 13-2-1987. Shri Ajwani has referred to a judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to a judgment of the Hon ble Supreme Court in the case of Mark and Saroop Aggarwal and others v. Bajaj and another reported in A.I.R. 1979 S.C. 110 where the Hon ble Supreme Court had held that the minimum charges collected by the appellant for entry in the restaurant for cabaret performances every evening was to be includible for the charging of the entertainment tax. Shri Ajwani has referred to the show cause notice as well as to the Ld. Assistant Colector s Order. He states that the appeal filed by the appellant may be dismissed. In the alternative, Shri Ajwani has pleaded that the matter may be remanded to the lower authorities for de-novo consideration. 5. In reply, Shri Krishnamani, Ld. Advocate, has pleaded that the argument of the Ld. S.D.R. as to resjudicata is not tenable. He has stated that the lower authorities have acted against the principles of natural justice and have re-adjudicated the whole issue. He has referred to a judgment of the Hon ble Calcutta High Court in the case of Conterman Peipers (India) Limited v. Additional Secretary to the Government of India reported in 1986 (26) E.L.T. 471 (Cal.) where it has been held that the tribunal is not, a court. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts on account of Dharmada from its customers on sales of yarn and cotton, at the rate of 1 anna per bundle of 10 Ibs. of yarn and 2 annas per bale of cotton. In the bills issued to the customers these amounts were shown in a separate column headed Dharmada . The respondent did not credit the amounts so realised by it in its trading account, but maintained a separate account known as the Dharmada account , in which the realisations on account of Dharmada were credited and payments made thereout were debited. The Tribunal held that the amounts could not be regarded as having been received or held by the respondent under a trust for charitable purpose, the trust being void for vagueness and uncertainly and that the realisations partook of the character of trading receipts. On a reference, the High Court held that the amounts in question were not the respondent s income liable to tax, as the amounts were paid by its customers specifically on account of Dharmada, the amounts were never treated by it as trading receipts or surcharge on the sale price, and that the Dharmada was a customary levy prevailing in certain parts of the country and where it was paid by the customers to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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