9911796707
TMI Blog2007 (5) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... o November, 2000. Learned Commissioner also imposed equal amount of penalty on the appellants under Section 11AC of the Central Excise Act and Rule 173Q of the Central Excise Rules, 1944. After examining the records, we find that, after clearances of the goods, the appellants had issued proforma invoices claiming certain amounts from their buyers. These claims could be categorised as follows:- (a) Cost escalation in respect of imported raw material on account of exchange rate variation; (b) Special packing charges; and (c) Bonus. Apparently, at the time of clearing the goods, the appellants had not estimated the cost of raw material (for inclusion in the assessable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor Undertaking with no intent to evade duty. No such intent has been established by the Revenue either. In the circumstances, according to learned counsel, the provisions of Section 11A(1) of the Central Excise Act were wrongly invoked for demanding duty on the differential value of the goods in the above category. After a close perusal of the allegations in the show-cause notice and the relevant findings recorded by the Commissioner, we have found substance in the submissions of learned counsel. The relevant finding is that the proforma invoices were not disclosed or shown to the department. The appellant's case is that they were not liable to show such non-statutory documents to the department. In any case, where no amount mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Tribunal was dismissed by the apex court vide Collector v. Lacto Cosmetics (P) Ltd. [1999 (106) E.L.T. A190 (S.C.)]. Learned SDR has cited the apex court's decision in Commissioner of Central Excise, Allahabad v Hindustan Safety Glass Works Ltd. [2005 (181) E.L.T. 178 (S.C.)], wherein it was held that cost of packing could be included in the assessable value of goods only if such goods were not capable of being marketed without such packing and such goods required such packing for its protection. Learned counsel has submitted that the special packing in the present case was given by the appellants at the request of some of the buyers and the same was not provided for any purpose specific to the goods. It is argued that the te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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