9911796707
TMI Blog1999 (10) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... turer in terms of Section 2(f) of the Central Excises and Salt Act, 1944. Notification 305/77-C.E. exempted such manufacturers from licensing control provided they filed a declaration giving the cost of construction each time the grey fabrics were sent. The declaration by the merchant manufacturers formed the basis of the price list filed by the predecessors in terms of Rule 173C of the Central Excise Rules, 1944 as it then stood. There was divergence in opinions as to what should be the assessable value. In a judgment the Delhi High Court had held that the quantum of job charges alone attracted the central excise duty. The issue was finally settled by the Supreme Court judgment in the case of Ujagar Prints & Others. In this judgment and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "post manufacturing profits" used by the Supreme Court, the Assistant Collector in paragraph 20 of the letter held as follows :- "In view of Rule 174A, read with Notification No. 305/77, dated 5-11-1977, the merchant manufacturer's are the legal manufacturers and all the factors, including the manufacturing profit contributing to the price upto the stage of first sale of the goods in the wholesale market is to be included in the assessable value. By the above method alone all the four ingredients of value mentioned in the clarificatory order would be comprehended in the assessable value. As per the aforesaid observations, the post manufacturing profit would be the profit arising on the subsequent sale of the goods after the 1st sale of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner in quantification of the amount in view of the material on record. Generally the fact that the traders' profit margin is separately indicated in the declaration filed by the appellant. There should therefore not be any difficulty in requantifying the assessable value in the manner laid down by the Supreme Court. We, therefore, set aside the orders passed by the Commissioner (Appeals) and by the Assistant Commissioner and remand back the matter to the Assistant Commissioner with the direction to decide the matter afresh in the light of the Tribunal's earlier Order No. 303/94A, dated 19-10-1994 on the basis of the declarations available with the department." 5. Pursuant to this order the Assistant Commissioner he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants, submitted that the department having made the claim of short payment was required to place on record the evidence to sustain the allegations. Except for the declarations filed by the assessees, there were no other documents. Although the entire body of the declarations was supposed to be available with them, the department was apparently unable to secure the complete set of declarations. The assessees due to a fire in their factory had a limited number of declarations on hand which they had submitted to the Assistant Commissioner. They had agreed to a percentage of 20 just to clear the issue. He submitted that the Supreme Court had not determined the percentage at 10 but actually in terms of the illustration the traders profit wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial. There was no cause for the Assistant Commissioner to rely upon the illustration given by the Supreme Court in determining the profit margin. If he was not in a position to arrive at the correct margin on the basis of the entire documentation, it was incumbent upon him to arrive at such determination on the basis of the documents made available before him. The methodology adopted by him and the conclusion arrived at by him were not in conformity with the specific directions made by the Tribunal in remanding the matter back to him. When the issue was directed to be settled in a specific manner it was entirely unnecessary for the learned Commissioner (Appeals) to insist on payment of pre-deposit and to dismiss the appeal for failure of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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