TMI Blog2004 (5) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... oncessional rate of duty during the year 1995-96 for the clearances in excess of 150 lakhs and they are liable to pay differential duty of Rs. 1,00,812/-. They are also not eligible for concessional rate of duty under Notification No. 19/95-C.E., dated 16-3-95 during 1996-97 and consequently they had to pay differential duty of Rs. 3,41,032/- in the year 1996-97 (up to 31-5-96). It was also found that the appellant has classified Bonding Gum under sub-heading 4006.90 w.e.f. 1-12-95 and availed exemption under Notification No. 1/93. The department has considered it as falling under sub-heading 4006.10 and held that they are not eligible for the exemption under Notification No. 1/93. Therefore duty of Rs. 1,76,853/- was payable for the year 1995-96 and 1996-97 (up to 31-5-96). Accordingly a show cause notice was issued to them demanding the differential duty and proposing imposition of penalty on them. The case was adjudicated by the Deputy Commissioner of Central Excise who confirmed the duty demand of Rs. 4,41,844/- disallowing concessional rate of duty under Notification No. 19/95, and classified the Bonding Gum/Repair Gum under sub-heading 4006.10 and confirmed duty demand of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/- as upheld by the Commissioner. He relied on the following decision in respect of the classification of Bonding Gum - (i) MRF Ltd. v. CCE - 1993 (68) E.L.T. 876 (T) wherein it was held that all other forms of unvulcanised rubber falling under Heading 40.06 which are not specifically covered by sub-heading 4006.10 would fall under residuary sub-heading 4006.90. He accordingly pleaded that the demand of duty amounting to Rs. 1,76,853/- is liable to be set aside. 5. The learned Counsel also stated that during the year 1995-96, the appellants had claimed concessional rate of duty for the goods covered under Notification No. 19/95-C.E., dated 16-3-95 and accordingly filed classification declaration under Rule 173B for the period from 1-3-96 to 31-3-97. They claimed exemption for Bonding Gum/Repair Gum classifiable under sub-heading 4006.90 under Notification No. 1/93. However under the impugned Show Cause Notice, the Department has classified Bonding Gum/Repair Gum under sub-heading 4006.10 and denied exemption to them and clubbed the value of clearances of these products with the value of other products for determining the value of clearances under Notification No. 19/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Indian Oxygen Ltd. v. CCE - 1988 (36) E.L.T. 723 (S.C.) wherein it was held that where the goods are partly sold from depots and partly sold from factory gate and ex-factory price is ascertainable, then ex-factory price should be the value under Section 4 of the Central Excises and Salt Act even for goods sold from depot. Similar views were taken in the following decisions - (i) A.P. Scooters Ltd. v. CCE - 1992 (57) E.L.T. 326 (T) (ii) Triveni Sheet Glass Works Ltd. v. CCE, Allahabad - 2000 (121) E.L.T. 630 (T) (iii) Escorts Yamaha Motor Ltd. v. CCE, Meerut - 2000 (122) E.L.T. 592 (T) (iv) CCE, Nagpur v. DCL Polyester Ltd. - 2001 (131) E.L.T. 290 (Tri.-Mum.) (v) J.K. Helene Curtis Ltd. v. CCE, Mumbai-III - 2003 (153) E.L.T. 440 (Tri.-Mum.) (vi) CCE, Chandigarh v. Bharati Telecom Ltd. - 2003 (161) E.L.T. 784 (Tri. - Del.) He also relied on the Circular No. 3/90-CX. 1, dated 25-1-90 issued by the CBEC, wherein it was clarified in Para 5 that in case of transfer of goods to regional sales depots, factory gate price will apply provided it is a genuine price. He therefore pleaded that the Commissioner (Appeals) has erred in holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation (ii) to the said notification. He therefore, pleaded that irrespective of the fact whether Bonding Gum falls under Chapter sub-heading 4006.10 or 4006.90, the clearance value of Bonding Gum has to be taken into account under Notification No. 19/95-C.E., dated 16-3-95. 9. Regarding re-determination of the aggregate value of clearance under Notification No. 19/95, he stated that since the assessments were finalised and the appellants have not disputed the assessments at any stage nor the assessable value of the clearance as declared by them at any stage, they cannot come up with the plea now, that they have paid higher duty for the clearance from the depot and value prevalent at the factory gate should be taken for determining the aggregate value of clearances under Notification No. 19/95-C.E. If the appellants had any dispute on the value, they should have contested it before the proper officer. The declared value which was never contested by them cannot be modified at this stage for revising the aggregate value of the clearance. 10. He further pleaded that since the department has classified the product, Bonding Gum under Chapter sub-heading 4006.10 which is a corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claimed that the assessable value of the clearance from depot and factory gate may be re-determined and the value of the clearance of the Bonding Gum/Repair Gum should be excluded for determining the aggregate value of the clearances under Notification No. 19/95, dated 16-3-95. We find that the assessable value of the clearance for the products cannot be re-determined at this stage. The assessable value was declared by the appellants themselves and they have paid the duty on the said value without any dispute and the assessments were finalised. Therefore at this stage they cannot come up for re-opening an issue which is already settled. The Commissioner (Appeals) in his order has rightly given the findings which are as under - 9. I have considered the submissions made by the appellants. I find that the assessable value of all the goods have been arrived at by the appellants themselves before hand and the Central Excise duty was paid by them accordingly. The assessments have also been finalized on the basis of the assessable values declared by the appellants. The appellants have never disputed the assessable values at the time of finalisation of the assessments. If the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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