9911796707
TMI Blog2014 (12) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... sent of the parties. We do so after waiving pre-deposit. 2. The appellant is a registrant under provisions of the Central Excise Act, 1944, being a manufacturer of excisable goods viz. primary cells and primary batteries. 3. On 27.2.2012, the Assistant Commissioner, Central Excise, Division-IV, Noida issued a Show Cause Notice to the appellant alleging the following (to the extent relevant and material) : (a) That audit of the appellants accounts for the period April 2009 to March, 2010, during 21.11.2010 to 27.11.2010 resulted in a report dated 21.3.2011 wherein the audit team observed that the appellant was engaged in the manufacture of 'AA' batteries and made incidental sale of these batteries to three units viz. M/s PMS Flashmatics ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest. 5. On 24.4.2012, the appellant furnished a reply to the Show Cause Notice wherein it is clearly pleaded that outward freight was included in the assessable value and specifically that no additional consideration was received (by the appellant) from buyers and therefore the demand for remittance of further excise duty is mis-conceived. 6. The ld. Assistant Commissioner, Noida-IV passed the Order-in-Original dated 1.2.2013 confirming the demand of excise duty of Rs. 66,738/- apart from penalty of an equivalent amount and directed recovery of interest under Section 11AB of the Act. Para 17 of this order reads as under : 17. The evidence on record show that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted. The Show Cause Notice fails to even allege that the appellant had recovered (from the institutional purchasers), any amount in excess of the transaction value on which duty was remitted. 8. Aggrieved by the primary order the appellant preferred an appeal which was rejected by the ld. Commissioner (Appeals), Customs, Central Excise & Service Tax, Noida, on 17.5.2013. Para 3.1 of this order clearly adverts to the main grievance in the appeal namely that outward freight was included in the assessable value and therefore was not liable to be added again for remittance of duty. This contention of the appellant is adverted to in detail in paras 3.2 and 3.3 of the appellate order as well. Paras 4.3 and 4.5 of the appellate order advert to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch charge, it is axiomatic, must be set out by appropriate, clear and specific pleadings in the Show Cause Notice, clearly alleging that the appellant had separately collected outward transport charges from its customers but failed to add the same to the transaction value. The Show Cause Notice sets out no such allegation. 10. In the Show Cause Notice, the primary order and the impugned order of the ld. appellate Authority, Revenue proceeds on the premise that the burden is on the appellant to establish that it did not separately collect the outward freight charges from the buyers, over and above the transaction value disclosed in the invoices. Such premise is conceptually fallacious. The burden of establishing an allegation, in the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. In para-4 of its Final Order dated 21.7.2014, the Tribunal clearly recorded that each and every evidentiary document produced by the appellant was rejected by Commissioner (Appeals) on flimsy and frivolous grounds, which are self-speaking. However, the Tribunal considered it appropriate to set aside the matter and remit the same to the primary Authority for fresh examination of the documentary evidence and to re-decide the issue accordingly. Ld. AR urges that we replicate this example. 15. On a careful consideration of the matter, we are not persuaded to follow the earlier course of disposition recorded in the appellants own case and for good reasons, which we now proceed to record. In the facts before us the Show Cause Notice doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was persuaded in the facts and circumstances of that case to remand the matter. In the present appeal and for reasons recorded by us supra, we find no justification for a ritualistic remand, the outcome of which is clearly beyond disputation. 17. For the reasons above, we allow the appeal and quash the impugned order dated 17.5.2013 of the ld. Commissioner (Appeals), Customs, Central Excise and Service Tax, Noida, with costs of Rs. 2500/- payable to the appellant. We are persuaded to impose costs on account of the clear perversity in the order of the primary Authority reiterated by the appellate Authority leading to this wholly avoidable appeal which adds to public costs by way of an avoidable appeal to the CESTAT. Since the appeal itself ..... X X X X Extracts X X X X X X X X Extracts X X X X
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