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TMI Blog2005 (12) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... s of M/s. Pepsi Foods Limited. Revenue conducted certain investigations, which revealed that the appellants were undervaluing the goods manufactured by them. The soft drinks manufactured by the appellants are promoted by M/s. Central India Marketing and Advertising (CIMA). CIMA undertakes advertisement for the soft drinks and collect certain amounts from the dealers towards royalty, advertisement and other promotional expenses. The total amount paid by the dealers to the appellants and CIMA is much more than the invoice price of the appellants. CIMA raised invoice on dealers for the differential amount between the invoice raised by the appellants and the actual cost of the soft drinks. After 1-4-1994, the dealers are paying the differential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod from 1-3-1994 to 7-10-1994. Under Rule 7 of C.E. Rules, 2002, the provisional assessment for the period from 8-10-1994 to 31-10-1995 was finalised. Consequent to the finalisation, an excess payment of Rs. 33,74,574/- was found as excess payment. The above amount was ordered to be credited to the Consumer Welfare Fund as the incidence of the duty excess paid as already been passed on to the consumers through the dealers of the appellants. A penalty of Rs. 2,00,000/- was imposed under Rule 52A and Rule 173Q (1) of the C.E. Rules, 1944. The land, building and plant and machinery used in connection with the manufacture of the goods were confiscated with an option to redeem on payment of fine of Rs. 25,000/- only. Again, the appellants app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue. 4. The learned Advocate adduced to the following arguments : (i) When the remand order is an open remand, the Commissioner has held that the remand order was only in respect of an amount of Rs. 33,74,574/- and has not gone into other issue agitated by the appellants. In fact there was no specific finding in the remand order about the setting aside of the duty demand and about the availability of ex-factory price but still the learned Commissioner has gone into these aspects and has rightly dropped the duty demand. He has also gone into the aspect of ex-factory price. Therefore, the Commissioner is wrong in holding that there was a specific direction of the CESTAT only to deal with the refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sales or on location of buyers, etc. it can be discarded only if it is proved that it is not a genuine price at arms length and normal course of trade. However, the order discards it only on the ground that the sales were only to a Maharastra located party. Section 4 nowhere allows such territorial discrimination as valid ground to discard the price at which the goods are sold at the factory gate. Therefore, this is yet another glaring instance of non-application of mind. The above findings of the CESTAT have become final, as department did not challenge them. The adjudicating authority committed contempt in not following the specific directions of the CESTAT. (iv) In the earlier OIO 27/2002, CIMA has been held to be an indepen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense of Rs. 16 per crate. Since the genuine of the said certificate has not been disputed, the discount of Rs. 16 per crate may be allowed. 5. The learned SDR reiterated the Order-in-Original. 6. We have gone through the records of the case carefully. The issue had already been considered by the Tribunal twice. In the impugned Order the Adjudicating Authority has given a finding that the appellants are entitled for a refund or Rs. 33,74,574/- being the excess duty paid during the period from 8-10-94 to 31-10-95. According to the appellants, the refund due to them for the above-mentioned period is Rs. 69,48,374/-. According to the Adjudicating Authority the terms of remand in the CESTAT order is only examining the issue whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understanding is not correct as it comes in the way of the deciding the exact quantum of refund, which is under dispute for the period from 8-10-94 to 31-10-95. Therefore, it is necessary on the part of the Adjudicating Authority to clearly indicate the method of arriving at the refund with the help of records available. Therefore, we have no option but to remand the matter to the Adjudicating Authority to indicate the method of working out the quantum of refund after giving an opportunity to the appellants and also after taking into account the records already available including the Chartered Accountant's Certificate. In other words, the Adjudicating Authority is at liberty to re-open the assessment during the period. He may keep the obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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