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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 ..... st. (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 and vide Final Order No.21/2007 dated 08.01.2007, the matter was remanded to the Commissioner (Appeals) to decide the case on merits. (iv) Based on such remand directions of the Tribunal, the Commissioner (Appeals) considered the appeal on merits along with the appeal filed by the Department against the very same OIO No.5/2006 dated 23.02.2006. Commissioner (Appeals) passed OIA No.65/2007 & 10/2007 both dt. 31.10.2007. By this order, the Commissioner (Appeals) remanded both the appeals to the adjudicating authority for fresh adjudication. (v) Against such remand order, the respondents preferred an appeal before Tribunal and by Final Order No.586/2008 dated 17.06.2008 the Tribunal remanded the matter to the original authority to pass fresh speaking order. While remanding, the Tribunal directed to issue fresh show cause notice and to finalize the provisional assessment. (vi) As per the remand order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 value even for the period prior to the amendment of the definition of 'place of removal'. 4. Further, part of the demand on packing charges for the period from 30.12.1983 to 31.03.1997 has been set aside for the reason that as per Order No.9/1997, the demand was dropped by the adjudicating authority and the department had not taken up the matter in appeal. It was observed by the Commissioner (Appeals) that the issue for this period has attained finality and therefore, the demand cannot sustain. Ld.A.R argued that, this finding of Commissioner (Appeals) is not proper due to the reason that though the said order was accepted by the Department, it cannot be binding on the adjudicating authority in de novo proceedings as the Tribunal had remanded the matter by setting aside the orders of both the authorities. The matter for the entire period from 1983 to 2000 was considered afresh. The Commissioner (Appeals) havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 packings. The judgement of the Hon'ble Apex Court rendered in various cases that packing charges which is absolutely necessary to put the product into the market alone is includible in the value was relied upon. This order was accepted by the department and no appeal has been filed. The said order actually covered the period from 01.05.1996 to 31.03.1997. The same has attained finality. The Ld. Counsel argued that the demand however is set aside by the Commissioner (Appeals) for the period from 30.12.1983 to 31.03.1997 and has to be sustained. 8. In regard to the demand of duty on post-manufacturing expenses, the Ld. counsel submitted that respondents had produced necessary documents along with C.A certificate before the authorities below. The adjudicating authority refused to accept the C.A certificate so as to allow the benefit of PME abatements. The adjudicating authority observed that the appellant has not furnished necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was paid provisionally and that the assessment has been finalized by the order of adjudicating authority dated 14/2009 dated 22.06.2009. However, the attempt of the Department is to deny refund of duty paid contending that respondent has paid under protest and therefore Section 11B will apply. Commissioner (Appeals) has correctly held that Rule 9B as it stood prior to 25.06.1999 would apply. Prior to 25.06.1999, refund cannot be denied alleging unjust enrichment for provisional assessment. He prayed that the appeal may be dismissed. 10. The Ld. Counsel put forward arguments against the demand of interest. It is submitted that interest is demanded under Section 11AB. Prior to 2001, a demand for interest will lie only if the department establishes any fraud, suppression of facts on the part of assessee. In this case, the duty was paid provisionally and the SCN has been issued for finalisation of assessment. As there is no fraud, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was analysed in the assessee's own case for the period 30.12.1983 to 31.03.1997 and vide Order No.9/97 dated 30.09.1997 the demand was dropped holding the issue in favour of the respondent. The period of dispute in OIO No.9/97 is 01.05.1996 to 31.03.1997 and not 30.12.1983 to 31.3.1997. The department has not filed any appeal against such order. However, the show cause notice for finalization of the assessment had included this period also and confirmed the demand. For this reason, the Ld. A.R has argued that OIO No.9/97 cannot be taken into account. In the case of Days Inn Deccan Plaza Vs CST Chennai - 2017 (52) STR 248 (Mad.), the jurisdictional High Court held that when the Order-in-Original has attained finality in earlier round the same cannot be disturbed in the second round of litigation. The relevant paragraphs of Hon'ble High Court order are reproduced as under : "7.4 It is settled law that statutory forums and/or Courts, can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed" (page 347). 17. The above view finds support from a number of decisions of this Court. 1. Aniyoth Kunhamina Umma v. Ministry of Rehabilitation, AIR 1962 SC 1616. ........ This Court dismissed the petition observing : "We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands, the petitioner cannot complain of the. infringement of a fundamental right, for she has no such right". ........" (emphasis is ours) ... ... ... .. 7.6 In so far as the first ground is concerned, that is, the order-in-original was passed in breach of principles of natural justice, we c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 given the reconciliation figures and explained the reason that there is difference in the figure given in the C.A. certificate and the trial balance. 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 the C.A certificate does not find favour with us. On going through the discussions made in pages-9, 10 & 11 of the impugned order, we have to say that the Commissioner (Appeals) has correctly proceeded to accept the C.A certificate and modify the demand of duty on post-manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Commissioner (Appeals) has erroneously set aside the demand from 30.12.1983 to 31.03.1997 on the basis of OIO 9/97. The period covered by this OIO is actually from 01.05.1996 to 31.03.1996 only. The respondent accepted the impugned order and has not filed any appeal. The department has filed appeal against such order. The Ld. Counsel for respondent has argued that the interest upto the period set aside by the Commissioner (Appeals) may be waived. We are not able to find any grounds to grant such a relief. There is no ground raised in the Cross Objections with regard to the demand of interest. The respondent cannot claim a relief in an appeal filed by the Department. It is made clear that respondent is liable to pay interest on all balance duty demand on packing chares and PME if not paid by them. 18. In the result, we order the following : (i) the demand of duty on packing charges for the disputed period (31.12.1983 to 30.06.2000) is upheld except for the period 01.05 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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