9911796707
TMI Blog2009 (4) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... r price variation and the provisional prices were based on prices evolved by Board for Industrial Casting and Pricing. Subsequent to clearances in the above period, the appellants received from DOT arrears on account of revision of wages; they also received interest towards debt raised for purchasing machinery deployed in the manufacture of telephone switching apparatus cleared to DOT. The appellants had not included elements of wage arrears, interest on loan incurred to purchase machinery and notional interest on advances received from DOT in the value for paying duty on clearances under provisional assessment. The jurisdictional Collector of Central Excise adjudicated non-payment of duty on these elements by HTL and demanded differential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L had not included these receipts in working out the value for payment of duty. The argument of the appellants against inclusion of these elements in the assessable value were rejected by the Commissioner. In these proceedings also HTL had raised the plea that the demand made was not sustainable as the assessment was provisional. 2. During hearing of the appeals against the above orders before the Tribunal, the learned consultant for HTL had prayed for remanding the matter for de novo consideration as the assessments were provisional. The Tribunal found that Order No. 16/97 had been passed in violation of the terms of the remand. All the three orders had been passed before finalizing provisional assessment. Following the judgment of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2,78,91,983/- was demanded towards differential duty on these elements net off the amounts already paid by HTL towards admitted liability on account of price revision. In the impugned order the Commissioner (Appeals) found that the original authority had not followed the provisions of Section 4 of the Central Excise Act, 1944 (the Act) in force at the material time and the remand directions of the Tribunal contained in Final Order No. 864/96 dated 17-5-96. Accordingly, he remanded the matter to the original authority to finalize the assessment in accordance with law and the remand directions of the Tribunal. In Final Order No. 846/96 dated 17-5-1996 the Tribunal had made the following observation : Inasmuch as the appellants have th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms of the remand orders of the Tribunal. He also found that the original authority made a mistake in considering interest on loan portion of capital employed as interest on advances . That authority had failed to establish that the advances received from DOT had unduly influenced the prices for sale to DOT. As regards the method of final assessment to be followed he made the following important observation:- However in the instant case, since the non-DOT price would represent the nearest ascertainable equivalent of the normal price as prescribed under Section 4(1)(b), the same would comprehensively cover all aspects of valuation including the impact of the advances and settle the dispute once for all. 4. In the appeal befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that adopting price as per Section 4(1)(a) main definition clause for assessing goods cleared under a contract was incorrect; for assessing such clearances the contract price has to be adopted in terms of proviso (i) to Section 4(1)(a) of the Act. The Commissioner (Appeals) made an illegal direction. It is prayed that the matter may be remanded to the Commissioner (Appeals) to decide the appeal before him on merits in accordance with the provisions of Section 4 and the remand directions of the Tribunal. We have also heard the learned Jt. CDR who invited our attention to the various orders passed by the Tribunal including the Final Order dated 20-11-2002 and agreed that value to be adopted for assessment of clearances made under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by DOT the value adopted for a relatively smaller quantity of goods cleared on sale to non-DOT buyers cannot be adopted as such; the same has to be adjusted for appropriate discount (or lower price) considering the bulk purchases made by DOT and the appropriate price arrived at in accordance with law. In the alternative, the includibility or otherwise of the various disputed elements could be examined in the light of the law and case law and the includible amount quantified and value determined correctly. 6. We find that the appellants have placed wrong reliance on the Apex Court s judgment in support of the claim that the directions on valuation to be followed by the original authority contained in the impugned order are not legal. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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