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TMI Blog2011 (4) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... s selling organisation where the goods are sold in the course of wholesale trade through depots outside the place of removal, the assessee would independently incur expenses not only for the transport of the goods from the place of removal to the depots but also on maintaining and running of depots but these expenses according to the Union of India v. Bombay Tyres International (1983 -TMI - 41501 - SUPREME COURT OF INDIA) are on the same par as after sale with reference to the service charge and advertisement charges and hence cannot be deducted - Decided in favor of revenue by way of remand. - E/1345/2002 - 360/2011-EX(PB), - Dated:- 21-4-2011 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Shri B.K. Singh Jt. CDR, for the Appellant. Shri P.C. Jain, Advocate, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. Heard the Jt. CDR for the appellant and the Advocate for the respondents. The present appeal arises from the order dated 22-3-2001 passed by the Commissioner whereby while allowing certain deductions claimed by the assessee, the Commissioner has confirmed the demand of duty to the tune of Rs. 10,68,457/-. Being aggrieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal was dismissed by the Apex Court on 18-1-2002 reported in 2003 (154) E.L.T. A-106. On remand, the Commissioner vide its order dated 28-11-2001 reconfirmed the demand relating to all the four heads namely, rent for the duty paid godown, depreciation for the bottles, quantity discount given in kind and the expenditure in retrieved bottles .The matter was again carried in appeal to the Tribunal and the order of the Commissioner was set aside by the Tribunal by its order dated 8-8-2002 and it was again remanded for reconsideration of the case relating to the said four heads. On remand, the Commissioner again reconfirmed the demand by its order dated 30-9-2004. The respondents challenged the said order before the Tribunal without any success as it was dismissed by order dated 8-4-2005 reported in 2005 (186) E.L.T. 117. The said proceedings concluded by the said orders of the Tribunal as it attained finality in the absence of any further challenge to the same. 4. Meanwhile, the Department issued another show cause notice dated 3-11-1995 for the period from April 1995 to October 1995. The respondents contested the proceedings by filing reply dated 2-5-1996. However, the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal, the order dated 22-7-2002 had disposed of the appeal as well as cross-objection and thus, the two appeals came to be filed before the Apex Court. The Hon ble Supreme Court by its order dated 6-7-2010 [reported as C.C.E., Delhi v. Pearl Drinks Ltd. in 2010 (255) E.L.T. 485] allowed the appeals and set aside the order dated 22-7-2002 of the Tribunal and remanded the matter while holding as under :- 14. Applying the above test to the case at hand the doctrine would have no application for the plain and simple reason that the subject matter of the appeal filed by the assessee against the adjudicating authority s order in original was limited to disallowance of two out of eight deductions claimed by the assessee. The Tribunal was in that appeal concerned only with the question whether the adjudicating authority was justified in disallowing deductions under the said two heads. It had no occasion to examine the admissibility of the deductions under the remaining six heads obviously because the assessee s appeal did not question the grant of such deductions. Admissibility of the said deductions could have been raised only by the Revenue who had lost its case qua those deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions claimed on the same heads by the respondents were disallowed by the Commissioner vide its order dated 23-6-2000 and the order in that regard was duly confirmed by the Tribunal by its order dated 2-3-2001 read with 20-8-2001 and 8-4-2005 and had attained finality and therefore, it was not open to the Commissioner to take a different view in relation to subsequent period in the absence of new material being placed on record in support of the claim of the deductions on the same counts. Reliance is placed in that regard in the matter of Union of India v. Kamalakshi Finance Corporation reported in 1991 (55) E.L.T. 433 (S.C.). It is further contention on behalf of the Department that the law on the point that the maintenance of depots by a manufacturer is part of manufacturing activity and its costs are liable to be included in the assessable value of goods is well settled by the decision of the Apex Court in the Bombay Tyre International case reported in 1983 (14) E.L.T. 1896 and the issue relating to the clearance of the goods from depot being settled in the matter of Government of India v. Madras Rubber Factory Ltd. reported in 1995 (77) E.L.T. 433, the Commissioner could not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-maintainability of the present appeal. With reference to the merits of the case, he submitted that as regards the Mazdoor and Cartage expenses, the vehicles were used for transporting aerated bottles/crates and on account of break down of such vehicles, the cost of bringing them back was part of cost of transportation of the product and therefore, it was part of the activity of the manufacturing. As regards the loading and unloading and again loading for sale on the next day form part of the transportation and therefore, the deduction to the cost of Rs. 24 lakhs in that regard is to be allowed. The establishment cost of Rs. 62,12,518/- is the cost of maintenance of the duty paid godown. The shell repair cost of Rs. 2,27,229/- relating to the maintenance crates and bottles which are durable and such crates were likely to be used in future. The interest on containers amounting to Rs. 91,100/- was normally to be allowed by the assessee as it is a part of the cost to own durable and returnable containers. The trade discount of Rs. 7,66,662/- was not relating to any abnormal trade discount in that regard, attention is drawn to the decision of the Apex Court in the matter of Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order cannot be challenged by an independent appeal. It cannot be disputed even during pendency of the appeal filed by the assessee against part of the impugned order which affected the assessee, the Department was not prohibited from filing its appeal in relation to the part of the impugned order which affected the interest of revenue. Mere disposal of the assessee s appeal would not be a hurdle to the Department for preferring such appeal even after disposal of the appeal filed by the assessee. 14. Even otherwise, it is too late for the assessee to raise any such preliminary objection. We are dealing with the matter on remand by the Apex Court. The remand proceedings are always to be in terms of the remand order. The parameters of the jurisdiction of the authority dealing with the proceeding on remand are always determined by the limits prescribed under the remand order. In the case in hand, the Apex Court had remanded the matter setting aside the order of the Tribunal which applied the doctrine of merger with specific direction to decide the appeal afresh in accordance with the provisions of law. 14. It is to be noted that in the earlier appeal proceedings against the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Collector is binding on the Assistant Collectors working within his Jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the Jurisdiction of the Tribunal. The principles of Judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the department - in itself an objectionable phrase - and is the subject-matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent Court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws . 18. Taking into consideration the facts and circumstances of the case, the law applicable thereto and particularly failure on the part of the assessee/respondents to produce any new material to justify the view different from the one taken for the earlier period which was confirmed by the Tribunal, we find that there was no justification for the Commissioner to decide the claim regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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