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TMI Blog2023 (3) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be excluded - Applying the ratio laid down in the respondent's own case, it is held that packing charges has to be included in the assessable value. However, for the period 01.05.1996 to 31.03.1997 there has been already an order passed in favour of the respondent dropping the proposal to demand duty on packing charges - Thus, when the Order-in-Original has attained finality in earlier round the same cannot be disturbed in the second round of litigation. Duty demand on the amounts of post-manufacturing expenses (PME) - rejection on the ground of discrepancies in the C.A certificate when compared with the trial balance - HELD THAT:- The lower adjudicating authority has summarily dismissed the veracity of the C.A certificate. The Ld. A.R has stressed that as the respondent has failed to produce documents the C.A certificate cannot be accepted. It has to be noted that the respondent has been paying the duty provisionally and they have been filing returns reflecting the duty paid by them along with C.A certificate. The argument put forward by the Ld. A.R that the respondent has not produced necessary documents in the nature of trial balance to verify the veracity of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] - FINAL ORDER NO. 40119 / 2023 - Dated:- 7-3-2023 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Shri R. Rajaraman, Assistant Commissioner (A.R) - For the Appellant Shri Raghavan Ramabadran, Advocate - For the Respondent ORDER The above appeal is filed by the Department aggrieved by the order passed by Commissioner (Appeals) dated 01.12.2011. Brief facts of the case are that the respondents, M/s.Royal Enfield are engaged in the manufacture of motor vehicles and parts falling under Chapter Heading 8711.3020 of Central Excise Tariff Act, 1985. The appeal has chequered history and the chronological events are as below : (i) Provisional assessment of the respondent for the period 31.12.1983 to 30.06.2000 was finalized vide Order-in-Original No.5/2006 dt. 23.02.2006 wherein a demand of Rs.28,09,480/- was confirmed along with interest. (ii) Aggrieved by the above order, respondents preferred an appeal before the Commissioner (Appeals) and vide OIA No.83/2006 (M-I) dated 28.09.2006, the respondent's appeal was dismissed for non-payment of pre-deposit. (iii) Respondents preferred an appeal before the Tribunal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is now before the Tribunal aggrieved by the order of the Commissioner (Appeals) who had modified the order passed by the original authority by reducing the duty liability and also holding that the respondent is eligible for refund. 3. The Ld. A.R Shri R.Rajaraman appeared and argued for the Department. He submitted that the first ground of appeal is with regard to modifying and reducing the demand raised in respect of packing charges. Section 4 of Central Excise Act, 1944 was amended on 28.09.1996 whereby 'depot' was also included in the definition of 'place of removal'. The Commissioner (Appeals) has analysed this issue and held that the period of dispute falls prior to 28.09.1996 and after 28.09.1996. It is submitted by Ld. A.R that this view taken by the Commissioner (Appeals) is erroneous as the amendment in the definition of 'place of removal' which included 'depot' also as place of removal is of no consequence for inclusion of packing charges in the assessable value. In the instant case, the packing was done within the factory. As the packing expenses was incurred by the appellant within the factory it has to be included in the assessable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssable value, the Ld. Counsel explained that during the impugned period, the motor cycles were not sold in packed condition either to dealer or to the ultimate buyer. Packing of the motorcycles was undertaken only for long distance transportation. The motorcycles were packed at the time of clearance from the factory to withstand the rigors of transportation from factory to outstation depots. The packing was done to prevent damage to motorcycles during loading, transport upto depots and unloading at depots. The packing was removed at depots before sale of motorcycle to the dealers. Motorcycles were not sold and delivered in packed condition. Upto 1992, the packing charges were included in the assessable value and duty was paid by the respondents. From 1992 to 2000, packing charges were not included in the assessable value since the packing was secondary only. In 1997, proceedings were initiated against the respondents to include the cost of packing in the assessable value. After adjudication the demand was dropped. The adjudicating authority in his order held that packing charges are not includible in the assessable value of motor cycles as these packings were only secondary packing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Central Excise Rules. After the close of each financial year, the C.A certificate showing the actual quantum of PME was submitted to the department for finalization of provisional assessment. The C.A certificate also took into account the amendment regarding place of removal w.e.f 28.09.1996 and from that date onwards the cost of transportation from factory to depots is not mentioned in the C.A certificate. That is, the C.A certificate took into account the cost of transportation from depots to dealers only, for determining the assessable value. This is very much clear from the C.A certificate for the year 1996-97 and the letter dated 16.12.1997 issued by the respondent to the Department. After taking into consideration all these aspects and the reconciliation statements submitted by respondent along with their reply to SCN, the Commissioner (Appeals) has correctly held that the C.A certificate cannot be disregarded without any reliable evidence to controvert the certificate. 9. The third issue is whether refund is hit by doctrine of unjust enrichment. The SCN is issued for finalization of assessment. The orders passed by both the authorities also reflect that duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Bench of this Court. 17 . Although, the counsel appearing for the appellant-company vehemently submitted that the facts of this case are more akin to the cases of Bombay Tyre International Ltd. [supra] and also to the that of Godfrey Philips India Ltd. Ors. case [supra] having considered the above situation of facts and law, we are of the considered opinion, that all the aforesaid decisions, which are relied upon by the counsel appearing for the appellant, were taken notice of in the subsequent decision in Madras Rubber Factory Ltd. [supra] and this Court after detailed discussion of such cases has given a very reasoned order which is applicable to the facts of the present case in full force. 13. Applying the ratio laid down in the respondent's own case, we hold that packing charges has to be included in the assessable value. However, for the period 01.05.1996 to 31.03.1997 there has been already an order passed in favour of the respondent dropping the proposal to demand duty on packing charges. In page-11 of the impugned order, the Commissioner (Appeals) has discussed that the very same issue as to whether packing charges has to be included in the assessable value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts strito sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal. ...... 16. In Malkarjun v. Narhari, (1901) ILR 25 Bom 337 (P.C.), the Privy Council dealt with a case in which a sale took place after notice had been wrongly served upon a person who was not the legal representative of the judgment-debtor s estate, and the executing court had erroneously decided that he was to be treated as such representative. The Privy Council said : In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturing expenses (PME). The original authority had rejected the claim of the respondent to consider these amounts as post-manufacturing expenses. The observation made by the adjudicating authority is that there are discrepancies in the C.A certificate when compared with the trial balance. In page-9, the Commissioner (Appeals) has discussed this issue and also observed that the respondent had furnished the reconciliation statement along with their reply dt. 05.06.2009. The difference in the figures when compared with the trial balance was explained by the Ld. Counsel for the respondents. The same has been noted by the Commissioner (Appeals) wherein it is stated that the difference is due to the fact that insurance and freight from factory to depot alone is claimed as abatement. This is reflected in the C.A certificate whereas the trial balance reflects the total value of both freight charges from factory to depot and from depot to dealer's premises. It is also observed that the respondent has furnished relevant extract of the trial balance and C.A certificate both for the disputed period in the annexure to reply of the SCN. In respect of Additional Sales Tax also, they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mumbai-II Vs Allied Photographics India Ltd. - 2004 (166) ELT 3 (SC) it was held that unjust enrichment is not applicable to refund consequent upon finalization of provisional assessment under Rule 9B of Central Excise Rules, 1944. We therefore find that the view taken by the Commissioner (Appeals) that the respondent is eligible for refund does not require any interference. 17. Ld. Counsel for respondent has also put forward arguments on the demand of interest. It is submitted that as per Section 11AB as it stood prior to 2001, the demand of interest can be made only when there is fraud, suppression of facts. In the present case, there is no allegation of fraud or suppression and it is demand of duty upon finalization of provisional assessment. Respondent has relied upon the decision in the case of CCE Bangalore Vs Scorpio Engineering Pvt. Ltd. - 2015 (322) ELT 667 (Kar.) and CCE Coimbatore Vs CEGAT, Chennai - 2005 (183) ELT 343 (Mad.) to argue that respondent is not liable to pay any interest on the demand of duty in respect of packing charges. We do not find any relief claimed in the Cross Objections regarding the demand of interest. From the records, it is seen that Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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