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TMI Blog2015 (2) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... mely Appeal No.63 of 2006 dated 12.7.2006, the Commissioner (Appeals) clearly held that the transportation charges should not be included in the assessable value for payment of duty. He further held that the work site could be a "place of delivery" and not "place of removal" and hence the cost of transportation from factory to the work site should not be included in the value for payment of duty. Hence, the entire show cause notice came to be dropped. In the light of such order, the plea of the Revenue is that there is no doctrine of merger in the present case cannot be countenanced. What the Revenue seeks to review in the further appeal against the adjudication order is that the demand was made in the show cause notice on the basis of sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of the doctrine of merger while the subject matters of the assessee's appeal and the department's appeal before the Commissioner appeal against the common order in original are entirely different? 2. The brief facts are as follows: The first respondent/assessee cleared pre-stressed pipes (PSC Pipes) manufactured in their factory to the work site belonging to the Nagapattinam Panchayat for execution of a water supply scheme in March, 2004. For the purpose of payment of duty, the assessee adopted the cost construction method as per Rule 8 of the Central Excise (Determination of Price of Excisable Goods), Rules, 2000. According to the Department, the cost construction method can be adopted only in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity, the assessee filed an appeal before the Commissioner (Appeals) contending that the addition of freight charges under cost construction method (captive consumption) was not correct and the duty paid on the cost of production plus profit margin as per Rule 8 of the Valuation Rules was correct. 6. The Commissioner (Appeals) vide order dated 12.7.2006 came to hold that when the place of removal of pipes is a factory, freight cannot be added to the cost of pipes. Accordingly, the Commissioner (Appeals) allowed the appeal filed by the assessee holding as follows: 4. I have gone through the records, contentions put forth in the grounds of appeal and submissions made during the personal hearing. I notice that lot of conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) contending that the excise duty should be charged on the basis of sale price, i.e., tender breakup price of pipe per metre as laid. The Commissioner (Appeals) took up the department's appeal in Appeal No.25 of 2007 and by order dated 27.3.2007 overruled the objection raised by the assessee that doctrine of merger will apply and held that the issue raised by the Revenue in further appeal is independent of the one already decided by the earlier Commissioner (Appeals) and therefore, doctrine of merger will not apply. Accordingly, the Commissioner (Appeals) allowed the appeal filed by the Revenue holding as follows: 5.10. In a nutshell I am of the considered view that the case is to be govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. 10. The Department, not satisfied with the order of the Tribunal, in allowing the appeal filed by the assessee holding that doctrine of merger will apply, has filed the present appeal. 11. Learned Standing Counsel appearing for the Revenue submitted that the appeal filed by the assessee before the Commissioner (Appeals) was with regard to the inclusion of transportation charges of the impugned goods in the assessable value, whereas the appeal filed by the Department was with regard to the adoption of factory gate price for the purpose of valuation of the impugned goods. Hence, the doctrine of merger will not apply to the case. In support of his contention, he relied on the decision in the case of Commissioner of C.Ex., Mumbai - I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice on the basis of sale price. When the Commissioner (Appeals) vide order dated 12.7.2006 in Appeal No.63 of 2006 has already held that the demand in the show cause notice is not maintainable, there is no scope for the Commissioner (Appeals) to review that order in the appeal filed by the Department. 14. We find that the specific issue raised by the Department in the show cause notice was considered in the adjudication order and the demand has been set aside by the Commissioner (Appeals) vide order dated 12.7.2006 in Appeal No.63 of 2006, which has not been challenged by the Department before the Tribunal. Hence, the Department is not justified in filing further appeal on the same issue before another Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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