9911796707
TMI Blog2004 (7) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... f Portland Cement was controlled by Cement Controller of India who fixed prices for delivery of cement packed in gunny bags on the terms and conditions on which distribution had to take place. These were set out in the communication fixing the prices of the cement in question. As per the said terms and conditions, the purchaser, was directed to preserve the empty cement bags in serviceable condition, return them to factory of origin or it's collecting agent on payment. Prior to 1-10-1975, the cost of gunny bags in which Portland Cement was packed was not included in the assessable value by executive instructions of the department. But with effect from 1-10-1975, when new Section 4 of Central Excises and Salt Act came into force, the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants have already been dealt with by him exhaustively in his Order-in-Appeal No. 77/01 (H-II) CE, dated 18-12-2001. This order of Commissioner (Appeals) was challenged by them before the Tribunal where the issue was whether gunny bags in which cement is packed is durable or returnable and whether in respect of returnability, there is any condition either by contract between the buyer and the seller or by statute. He pleaded that the Assistant Commissioner in his Original order has accepted that they have appointed agents to collect second-hand gunny bags from the consumers on their behalf (para 14 of OIO), the gunny bags in which cement is packed and sold are not only durable and returnable but also there is a statutory condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice to the appellant under C. No. V/23/18/84/85, U-6 (T), dated 17-5-86 giving the various grounds for rejection of refund claim for Rs. 17,68,481.56. This show-cause notice was adjudicated by the Assistant Commissioner in which he sanctioned the refund. However, the department filed the appeal against the order of the Assistant Commissioner and that litigation till now continues. Therefore what was sanctioned was consequent to the issue of show cause notice. Once the order passed on that show cause notice itself is in dispute, there was no need for issuing another show cause notice for recovery of the amount erroneously refunded to the appellants. As this very first show cause notice was issued proposing to reject the refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75 to 18-1-76 on the ground that packing material i.e. gunny bags are of durable nature and is returnable within the meaning of Section 4(4)(d)(i) of the Central Excises and Salt Act. It was alleged in the show cause notice that the gunny bags in which cement is supplied are not actually returned to the appellants by the buyer and the cost of packing would form part of the assessable value of cement. The appellants had purchased second hand gunny bags from Raghavendra Gunnies Merchants, Vijayawada, Ganesh Gunnies Merchants, Vijayawada, Premji Velji & Company, Bangalore who are not the buyers of cement. From the evidences, it appeared that the appellants are not eligible for refund of duty paid on packing charges and they were asked to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of show cause notice. The amount of refund was paid to the appellant, by the Assistant Commissioner after passing adjudication order. Now the order of the Assistant Commissioner has been set aside by the impugned order but the amount sanctioned has already been paid to the appellant. To recover the amount already paid to the appellant only course open to the Department was to issue a show cause notice under Section 11A of the Central Excise Act for recovery of the amount erroneously refunded to the appellant and simultaneously filing the appeal before the Appellate Authority, challenging the order of Assistant Commissioner sanctioning the refund claim. Since the show cause notice for recovery of amount already paid to the appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
