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TMI Blog2016 (8) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... 62/- axiomatically no demand would survive after allowing deduction of the actual expenses relating to the said permissible three heads. Consequently we need not go into the merits of disallowing the expenses incurred under other various heads for the purpose of deciding whether the impugned demand is sustainable. As regards the contention of Revenue that by adopting the actual figures for deduction, the Commissioner has gone beyond the remand order dated 21.4.2011 of CESTAT, we have perused the CESTAT order and we are unable to fathom from the CESTAT's remand order as to how adopting the actual figures of permissible expenses for arriving at the assessable value is in disharmony therewith while at the same time doing so is in harmony with the order of the Supreme Court dated 15.5.2015. - Decided in favour of assessee - E/5490/2004-EX(DB) & E/3165/2012-EX(DB) with CO/4878/2012 - Final Order No. 52567-52568/2016 - Dated:- 15-7-2016 - Mr. S.K. Mohanty, Member (Judicial) and Mr. R.K. Singh, Member (Technical) Shri R.K. Manjhi, DR for the appellant Shri V.M. Dolphode, Advocate for the respondent ORDER Appeal No. E/5490/2004 is filed by the appellant/assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.10.1995 Letter from M/s Pearl Drinks Ltd to Supdt. Central Excise, MOD-I regarding deductions claimed, it was stated that the assessable value may kindly be treated as provisional and it is only at the end of financial year after the finalisation of the accounts, that it is possible to determine the exact amount under each of the various heads. Further, it was claimed that since all the admissible abatements worked out are more than the abatements claimed, there should be no objection to the Deptt. And requested to pass RT-12 provisionally. 7. 3.11.1995 SCN No.CE-20/SCN/Pearl/R-I/1183 to 1184 issued by Asstt. Commissioner of Central Excise, MOD-I for the period 1.4.1995 to 31.10.1995 demanding central excise duty of ₹ 34,54,796/- 18-10 (in Deptt s appeal) 8. 21.5.1996 M/s Pearl Drinks Ltd. filed reply to SCN dated 3.11.1995 stating that there is cushion available between what is claimed and the value on which duty has been paid, that they had requested for provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing appropriate order after hearing the parties. 82-70 17. 8.2.2012 The Honble Tribunal passed Misc. Order No. 261-262/2012-Ex.(BR) on Revenues application for extension of time. 90-82 18. 12.6.2012 M/s Pearl Drinks Ltd. made submissions before Ld. Commissioner. In para 9(e) it was submitted that there is adequate cushion available for setting off the alleged inadmissible expenditure and no duty is payable, as total inadmissible expenditure is ₹ 97,04,384/- and total expenditure incurred on items already allowed is ₹ 95585556/- as against the actual deductions availed are ₹ 7,95,89,563/- and therefore no duty is payable. 1-14 (paper book filed by Pearl Drinks Ltd.) 19. 25.6.2012 Order No. 03/D-I/2012 passed by Commissioner of Central Excise, Delhi-I dropping central excise duty demand and penal proceeding on the ground that availability of cushion supported by adequate admissible deductions being p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above) which were disallowed for the reason that the actual expenses in respect of heads which were held to be deductible come to ₹ 95585556/- while the total deductions claimed by them as per the show cause notice (based on the provisional figures) amounted to ₹ 58982962/- (out of which deductions amounting to ₹ 9704384/- only were held to be inadmissible). Ld. Advocate pleaded that if deductions under various heads permitted in the show cause notice only were taken into account and actual figures pertaining to those heads were allowed deductions then there would no demand at all. Indeed it might be a case involving refund. 3. Ld. DR, on the other hand, reiterated the contentions contended in the impugned order. 4. We have considered the contentions of ld. Advocate and also of the ld. DR. For the reasons which will become obvious in the following paragraphs, for the purpose of deciding this case we need not go into the merits of the deductibility or otherwise of the expenses incurred under the heads mentioned at (a) to (h) above which were held to be non-deductible for determining assessable value leading to the impugned demand. 5. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 Freight and octroi charges 588,313 Service charges including handling 2,400,000 Depreciation of the vehicles 750,376 Establishment cost 13,796,648 Total 29,946,484 Net production for own sale 2,644,696 Transportation cost per case 11.32 RETURNABLE CONTAINER SERVICES Shell repair cost 227,329 Empty exchange charges 1,120,198 Depreciation on containers 23,139,967 Less; profit on sale of containers 3,063,964 Interest on containers 91,100 Breakage, Burst and Leakage 12,127,184 Lease Charges 10,323,507 Total 43,965,321 Net production for own sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DMISSIBLE EXPENDES (1-2) 85,551,974 4. Deduction claimed by company in 1994-95 as per SCN 58,982,962 5. Cushion available i.e. Deduction not claimed (3-4) 26,569,012 6. Revenues contention that the assessee did not raise the point earlier that the expenses under various heads furnished were provisional is factually incorrect as we have already recorded that the assessee had clearly stated in its letter that the deductions under various heads were on provisional basis and the actual expenditure can be ascertainable only after finalisation of accounts. 7. Revenue at one stage contended that the assessee should have filed refund claim, if excess duty was paid. However, we notice that it is a case involving determination of assessable value u/s 4 ibid by deducting permissible deductions from the wholesale price and the only issue involved is whether the impugned demand confirmed on the ground that certain deductions were not admissible is sustainable or not. 8. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the case involving same issue pertaining to the subsequent year vide Order-in-Original No. 03/D-I/2012 dated 25.6.2012. The impugned demand was confirmed on the ground that out of the deductions amounting to ₹ 58982962/- claimed by the appellant for the period 1994-1995, deductions amounting to ₹ 9704384/- were not admissible and the demand was computed on the amount held to be inadmissible. But in the wake of the fact that the actual figure of the total expenses under the aforesaid three heads held to be deductible from the wholesale price is ₹ 9558556/- which is far more than the total deductions claimed for the year 1994-1995 (viz. ₹ 58982962/- axiomatically no demand would survive after allowing deduction of the actual expenses relating to the said permissible three heads. Consequently we need not go into the merits of disallowing the expenses incurred under the heads (a) to (h) mentioned earlier for the purpose of deciding whether the impugned demand is sustainable. E/3165/2012 11. Revenue is in appeal against Order-in-Original No. 3/D-I/2012 dated 25.6.2012 passed by the Commissioner, Central Excise, Delhi in terms of which he pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice has been issued without appreciating all aspects of the issue and not taking into account the facts/submissions brought to the knowledge by the party at the appropriate time. In the presence of adequate cushion being available as discussed above and also claim for the same by the party, it is viewed that though the relevant issues raised in the show cause notice hold good in view of the evidence brought out in the show cause notice and consequently the resultant demand attributable on this count could be valid, if the evidence pertained to the period covered by show cause notice issued in the instant case. However, the availability of the cushion as discussed above does not warrant recovery of differential duty on such amount. To make the matter more simple, I conclude that the view point of department with regard to inadmissibility of deductions is correct but the inadmissible deductions as discussed above pertain to the period 1994-95. The re-computation thus emerges as under: S. No. Description Amount 1. Total deductions claimed by the party during 1994-95 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tify the decision different from the one taken for earlier period. Even though we have heard at length the Advocate for the respondents, he has not answered or countered this contention canvassed on behalf of the Department. Obviously, the respondents have no answer to the said contention sought to be raised on behalf of the department. 20. For the reasons stated above, therefore, the appeal succeeds and the same is allowed and the impugned order is set aside and the matter is remanded to the adjudicating authority for passing appropriate order after hearing the parties and bearing in mind the observation herein above. The matter should be disposed of within a period of six months from today. 14. We are unable to fathom from the CESTATs remand order (and the above 2 paras thereof in particular) as to how adopting the actual figures of permissible expenses for arriving at the assessable value is in disharmony therewith while at the same time doing so is in harmony with the order of the Supreme Court dated 15.5.2015 (supra). 15. In the light of the foregoing, we allow the assessees appeal No. E/5490/2004 and dismiss Revenues Appeal No. E/3165/2012. Cross objection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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