2009 (9) TMI 852 - AT - Central Excise

Summary

Issues involved: Assessment of duty on additional consideration received towards BOPP films sold, applicability of penalty u/s 11AC of the Central Excise Act, whether amounts collected under debit notes were liquidated damages or part of assessable value.

Assessment of duty: The Appellate Tribunal considered the case of M/s. Venkateswara Flexopack Pvt. Ltd. (VFP) who manufactured printed and laminated BOPP film used as packing material. Debit notes were raised on customers for 'cylinder charges' totaling Rs. 43,11,997, leading to a duty demand of Rs. 6,89,920, interest, and penalty u/s 11AC of the Act. The tribunal affirmed the duty demand as the additional consideration received was towards BOPP films sold.

Liquidated damages argument: VFP argued that the amounts collected under debit notes were liquidated damages for customers failing to lift contracted quantities, citing various tribunal decisions and the Apex Court ruling on oral contracts. They claimed the cylinder charges were not part of the assessable value and penalty was wrongly imposed due to lack of wilful suppression.

Tribunal's decision: After reviewing the records and submissions, the tribunal noted the importance of contracts in determining if the cylinder charges were liquidated damages or part of the assessable value. The absence of contracts raised doubts, and the identically worded certificates provided were deemed insufficient evidence. The matter was remanded for fresh assessment by the original authority, emphasizing the need for VFP to present reliable evidence such as balance sheets or purchase orders to support their claim. VFP was granted an opportunity to present their case effectively before a new decision is made.

Conclusion: The tribunal allowed the appeal by remand, highlighting the necessity for clear evidence to differentiate between liquidated damages and assessable value, emphasizing the importance of contracts in such determinations.