9911796707
TMI Blog2001 (9) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... r Final Order No. 1531/98-A, dated 22-12-98. 2. Two issues are raised in this appeal, one relates to choice of slab for the purpose of finding out the fabrication rate for drums, the other one is in connection with the cost of scrap to be added for the purpose of arriving at the assessable value of the drums manufactured by the Appellants. We will first deal with the second point since we are accepting the contention raised by the Appellants on the ground of limitation. In the show-cause it is alleged that in making a bitumen drum of 160 kgs. capacity, 10.300 kgs. steel sheet was used out of which one drum weighing 9.400 kgs. was manufactured. The balance of 900 gms. remain as off-cutting which was retained by the party and sold to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and therefore, there is no short levy or suppression of facts by them. 3. As mentioned earlier a different view is taken in the impugned order, the Appellants contented that in the light of the Order dated 10-4-90 no different view could have been taken by the Commissioner in the order impugned. In support of above contention he placed reliance on 3 decisions :- (i) 1982 (10) E.L.T. 1 (Bom.), M/s. Camlin Pvt. Ltd. v. U.O.I., (ii) 1996 (81) E.L.T. 248 (Tribunal), M/s. Shalimar Chemical Inds. Pvt. Ltd. v. CCE, Bombay, (iii) 2000 (126) E.L.T. 1141, M/s. Kwality Biscuits Ltd. v. CCE, Bangalore. We are not able to accept the contention raised by the Appellants th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate and also billing procedure. The learned Counsel appearing on behalf of the Appellants, very fairly submitted that even though he had placed reliance on the contents of the letter dated 30-3-1988 before the Commissioner he had not produced before him a copy of the same. 5. The Commissioner in his order refers to the operating part of the Order dated 29-3-91 where the schedule of rate is referred which reads as follows :- Schedule of rate Fabrication rate per drum w.e.f. 1-3-90 to 31-8-90 w.e.f. 1-9-90 to 28-2-91 1 2 3 1. 4 lakhs & above but less than 5 lakhs Rs. 10.27 Rs. 10.41 2. 5 lakhs & above but less than 7.5 lakhs Rs. 8.77 Rs. 8.91 3. 7.5 lakhs & above but less than 9 lakhs R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, as per the existing escalation formula of the original contract (clause 20.2 as amended by sl. no. 15(1) of agreed variation) upto 29-7-1987. The new revised escalation formula sl. 3(a) of this letter shall be effective from 30-7-1987." By referring to the billing procedure adopted in the letter dated 30-3-88 the learned Counsel for the Appellants would submit that the initial billing shall be made at the rate and applicable to slab 5 to 7.5 lacs drums of annual off-take if the actual supply is more or less than necessary adjustment would be made at the end of the financial year. For the purpose of arriving at slab rate the number of lube drums produced in a year should also be added to the annual off-take of bitumen drums. Minimum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cleared during 1991-92 came to 62,611. Thus, according to the Appellants it has cleared 5,55,801 drums which would bring it under the slab No. 2 which relates to 5 lakhs and above but less than 7.5 lakhs. In the relevant period there is no revision of rates after 28-2-91. The rate that has to be applied is Rs. 8.91 per drum. 7. Since the above mentioned materials, relied upon by the Appellants in support of his case that the fabrication rate per drum is @ Rs. 8.91, were not as such placed before the Commissioner, the learned D.R. would contend that this Tribunal would not for the first time take into consideration these materials to allow appeal. We are of the view that the learned D.R. is perfectly justified in taking such a conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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