9911796707
TMI Blog2002 (11) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... P. The foot wear was liable to duty on ad valorem basis and the appellants were clearing the foot wear from the factories after payment of duty on the basis of ex-factory sale price. The impugned order has held that there was undervaluation of the foot wear in question which led to short levy of Central Excise duty during the period 1991-96. the order has, accordingly, demanded the duties short levied as well as interest on the amounts short levied and has imposed penalties. The short levies have been held to be the result of suppression of facts which justified the duty demand for the extended period of five years permissible in such cases in terms of proviso to Section 11A of the Central Excise Act. The appellants have challenged the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and for this reason the ex-factory sale price cannot be treated as normal value and the correct assessable value is to be arrived at by loading ex-factory price by 15%. The submission of the appellants on the non-maintainability of this addition are many. It has been pointed out that addition of 15% to the ex-factory price would make it equivalent to the sale price of the appellant s distributors to their dealers, which according to the appellants is not justified in the facts of the case at all. 4. With regard to the deposits it is the appellants submission that these deposits were of small amounts like Rs. 20,000/- or Rs. 35,000/- per distributor and such small amounts of deposits in no way affected the ex-factory sale price. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible in law was only to make suitable addition to the ex-factory price so as to make it equivalent to the total consideration for the sale of the goods, namely, ex-factory sale price + the money value of the extra consideration i.e. the interest attributable to the amount in deposit. The learned Counsel pointed out during the hearing that such addition would have led to a total duty demand of Rs. 16,53,094/- while the duty demanded in the impugned order is 35 to 40 times multiplied. 6. During the hearing of the case, the learned Counsel for the appellants has further pointed out that the findings in the impugned order regarding valuation is contrary to orders passed by the jurisdictional Central Excise authorities on the issue of valuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that the conflict between the view taken in the impugned order and the aforesaid orders passed by jurisdictional authorities for the subsequent period (even while the assessee s trade practice was the same) itself was sufficient to show that there was no contumacious conduct on the part of the assessee. Instead, the finding regarding incorrect adoption of assessable value has been reached in the order impugned on account of taking a different opinion on the assessable value on the same facts. 9. Ld. SDR took us through the evidence relating to recovery of service charges (2%) even though no service has been rendered and recovery of 4% towards Central Sales Tax even when no LST was payable, and contended that the ex-factory pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the Apex Court s decision in the case of V. S. T. Industries. There is also no justification for adopting any other sale price as the assessable value. Adding 15% of the ex-factory price, makes that the distributors sale price i.e. the second tier in the trade. This is not permissible. The concern of the excise is with the act of manufacture. So the measure for valuation is the manufacturer s price i.e. the first tier in the trade. 11. Contentions relating to limitation also merit acceptance. The appellants trade practice has remained the same during the period covered by the impugned order and the period covered by the aforesaid orders of Asstt. Commissioner and Commissioner (Appeals). The impugned order has reached the finding th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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