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TMI Blog2008 (4) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... se and Service Tax Appellate Tribunal West Zonal Bench at Mumbai in Appeal No. E/1745/99-Mum and also order dated 15.6.2006 of the same Tribunal in Rectification of Mistake Application No. E/3372/2005. 3. In view of order that we propose to pass, it is not necessary to set out all the facts in detail. Suffice it to state that the petitioner had filed application for refund of the amount of freight from the factory gate to depot and the amount of insurance of the goods during the transit. The adjudicating authority i.e. Assistant Commissioner, Central Excise Customs, Division-II, Vadodara, by his impugned order dated 26.8.1997 rejected both the refund claims which pertained to the period subsequent to 28.9.1996. The adjudicating authority raised the following two issues in the said order : "(1) Whether or not the assessee is entitled to claim refund on merit, if so (2) Whether or not the assessee is entitled to get the refund amount or whether the amount is to be diverted to the consumer welfare fund." 4. On the merits of the first issue, the Revenue's case was that although the expenses in question were not includible for the assessment period prior to 28.02.1996 on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to comply the above requirement of law. In the circumstances stated in the foregoing para it is found that the appellants are not entitled to the refund in question. Accordingly I uphold the impugned order passed by the Assistant Commissioner and reject the appeal." The appellate authority thus confirmed the order of the adjudicating authority after giving findings against the petitioner on both the issues. 7. In the Second Appeal before the Tribunal, by relying on the decision of the Apex Court in case of VIP Industries Ltd. v. Commissioner of Cus. C. Ex., Aurangabad ( 2003 (155) E.L.T.8 (S.C.)), the petitioner succeeded in persuading the Tribunal to reverse the finding of both the authorities below on the merits of the first issue. The Apex Court held in the above decision that where the price remains uniform or constant all over the country, value for the purpose of excise does not change merely because the definition of the expression "place of removal" is extended vide amended Section 4(1)(a) of Central Excise, w.e.f. 28-02-1996. Cost of transportation from factory to the depot is not includible in the assessable value where a manufacturer includes equalized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 of the Constitution of India. 10. Mr. Harin P. Raval, learned Assistant Solicitor General has raised a preliminary contention that when the petitioner has an alternative remedy of filing a statutory appeal, this petition under Article 226 of the Constitution should not be entertained. 11. Mr. Nankani, learned Counsel for the petitioner has replied that the question whether the payment of duty was made under provisional assessment or final assessment would always be a question of fact and that the Tribunal was required to decide that question. The Tribunal was required to give finding on the issue which went to the root of the matter. According to the petitioner, the Revenue's own case was that the assessment was provisional as was clear from the order dated 14.10.2005 which was passed by Assistant Commissioner of Central Excise Customs, Makarpura Division, Vadodara-II in which in the operative portion of the order it was stated as under : "1. The provisional assessment is finalised in totality considering all the permissible and non permissible elements of PME as per the law under Rule 9B of Central Excise Rules, 1944 for the period 01/01/1987 to 31/05/19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mended provision did not apply to the petitioner who was not making any sale from the factory gate but was clearing the goods only from the Depots at uniform price all through-out the Country, the Tribunal ought to have given an opportunity to the petitioner to show that the payment of duty was made under provisional assessment. The Tribunal could have remanded the matter to the adjudicating authority to give clear findings on this issue because the adjudicating authority had decided the matter against the petitioner only on merits of the first issue and the appellate authority also decided the second issued against the petitioner only on the ground that the petitioner had not adduced any evidence. 14. In view of the above discussion, we are of the opinion that this petition is not required to be dismissed on the ground of availability of alternative remedy of appeal under Section 35G of the Central Excise Act, 1944 which permits the aggrieved party to challenge the order of the Tribunal on the ground that the order raises a substantial question of law. Obviously, in the facts of the present case, the question of law which was decided against the petitioner by the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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