TMI Blog1988 (5) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... contract with them. Scrutiny of the records/documents revealed that the Unit had issued invoices covering the sales of their products as aforementioned and had also issued separate invoices (debit notes) representing the handling charges and , cylinder detention charges . The appellants had filed price lists under Rule 173C of the Central Excise Rules, 1944 for their products and the invoices issued by them reflected prices mentioned in the price lists and duty was. paid on the basis of these approved prices. The amount representing handling charges and cylinder detention charges recovered by issuing separate invoice (debit notes) as mentioned above were not included by them in the prices declared by them to the Central Excise authorities nor had they declared the recovery of said charges before the authorities while filing; the price lists. The scrutiny of General ledger maintained by the Unit during the year 1979 to 1984 further revealed that the extra charges by way of issuing separate invoices (debit notes) were recovered by them mainly under the following heads :- (1) Handling charges, (2) Loading and unloading charges, and (3) Cylinder detention charges. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd removed by them during the period April 1979 to February 1984 and to show cause why duty should not be recovered from them on the goods valued at Rs. 64,49,512.35 under the proviso to sub-section (1) of Section 11A of the Central Excises and Salt Act, 1944 (corresponding to provisos (a) and (b) of sub-rule (1) of Rule 10 of the Central Excise Rules, 1944, as it stood before being omitted vide Notification No. 177/80, dated 12-11-1980) read with Rule 9(2) of the Central Excise Rules, 1944. In reply to the Show Cause Notice the appellants stated as under :- (i) The past proceedings of the year 1981 regarding inclusion of handling charges, transport charges etc. which were ultimately dropped are deliberately and purposefully ignored by the officers. (ii) The cylinder detention charges had no relation or connection with the sale prices of gases. They were charged for delay in return of empty containers of gases by the buyers which are not charged with empty containers of gases or cylinders are returned within the time schedule and accepted. (iii) Handling charges had also nothing to do with the sale prices of gases, as they were charges for services rendered to the buyers sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the appellants and in 1981 an enquiry was conducted by the revenue authorities and on 28th July, 1981 the appellants had submitted a clarification to the Superintendent regarding handling charges and had stated that the Handling Charges were recovered for loading operation and their reply to enquiry appear as Annexure II to the appeal memo. He stated that the Assistant Collector of Central Excise, Baroda vide letter dated 22nd October, 1981 had intimated that necessary instructions regarding transporting and Handling charges of the goods had already been issued to the concerned Assistant Collector which, appears as Annexure I to the appeal memo. In 1982 Preventive Department carried out an investigation and had checked the appellants RG1, GP1 Classification List, price list, private records like ledger sales and miscellaneous journal all series of bills like gas bills, handling bills, loading and unloading and other miscellaneous bills for the year 1978 to 1982 and the same were found to be in order. A copy of the remarks made by the Inspector, Central Excise, Preventive Branch Baroda appears as Annexure III to the appeal memo. Shri Dave had argued that the handling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 1896 (S.C.). 4. We have heard both the sides and have gone through the facts and circumstances of the case. The appellants had been filing price lists in part I and part II in terms of the provisions of Rule 173C of the Central Excise Rules, 1944. In the price lists filed by the appellants the appellants did not declare the handling charges/loading and unloading charges and cylinder detention charges in the price lists filed by them rather the appellants were charging the same after issuing separate invoices. The appellant s arguments that the Excise Authorities were very much aware of the recovery of handling charges and the reference of letter dated 22nd October, 1981 written by the Assistant Collector of Central Excise, Baroda and the appellant s intimation dated 28th July, 1981 does not help the appellants. Filing of price lists is a statutory requirement. Accordingly, we hold that there was suppression of facts on the part of the appellants and the extended period of limitation in terms of provisions of sub-section (1) of Section 11A of the Central Excises and Salt Act, 1944 is applicable in this case. Consequently penalty on the appellants is also justified but in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The appellants have not given any details as to the expenses incurred by them for loading and amount recovered for loading from their customers. During the course of arguments the learned Jt. C.D.R. had argued that the amounts recovered from the customers under various heads were far in excess of the expenses actually incurred by the appellants on handling and unloading charges. We hold that the expenses actually incurred by the appellants on permissible deductions alone would be excludible and any excess recoveries from customers would be considered as part of the appellant s price realisation. 9. Accordingly, we set aside the impugned order and remand the matter to the Collector of Central Excise, Baroda to readjudicate the matter in the light of the observations made by us in terms of the Hon ble Supreme Court s judgments referred above. Regarding unloading charges recovered by the appellants we would like to observe that the same are not includible as the same were incurred by the appellants outside the factory gate after the clearance of the goods. Accordingly, we set aside the order of the adjudicating authority in this regard and order that the unloading expenses are ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
