TMI Blog1985 (4) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly, in terms of rule 173C of the Central Excise Rules, 1944, the appellants had filed before the proper officer regular price lists and RT-12s, which were approved and the appellants cleared the goods as per the declared prices. The goods involved in the present proceedings were manufactured by the appellants in their factory located at Ghaziabad but the sales were initiated from their sales office in Delhi. It is the case of the appellants that they were scrupulously and strictly declaring the invoice prices as per the approval accorded by the proper officer. Nevertheless, in some stray transactions the sale office found it necessary to make some marginal adjustments in the net price either on account of the prevailing market conditions or insistence by the particular buyer. However, where the net price was modified slightly upwards or downwards, in all such cases, so far as the duty of excise is concerned, that was credited and paid with reference to the approved price lists. The present proceedings arose out of issue of show cause notice No. 271 dated 6-3-1973 which was superseded by show cause notice No. 287-88 dated 12-3-1973. This notice was superseded by show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving a duty of Rs. 3,16,099.08. 3. The Assistant Collector of Central Excise, Ghaziabad, after getting the appellant s reply to the show-cause notice and after granting them a personal hearing adjudicated the case. He held that the amount of Rs. 3,16,099.08 as shown in the show cause notice dated 3-10-1973 was payable by the Appellants. The Assistant Collector rejected all the pleas of the appellants including the one where the appellants had pleaded that the same issue had been decided in their favour by order dated 7-11-1974 passed by the Appellate Collector Shri S.N. Mathur and that it was not open to the Assistant Collector to go against the above mentioned orders dated 7-11-1974. 4. Aggrieved with the Assistant Collector s order, the Appellants took up the matter with the Appellate Collector before whom they raised the following grounds:- (1) The proceedings initiated against them were void in view of the order-in-appeal dated 7-11-1974 passed by the Appellate Collector Shri S.N. Mathur. (2) The sales effected by the appellants had been made in accordance with the prices approved by the proper officer which in several cases did not contemplate or provide for any discou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d both sides on this point. We feel very unhappy and somewhat concerned that in vital matters like the issuing of the show cause notices, the lower authorities should not be able to make up their mind firmly. In the present case certainly the lower authorities action in superseding the show cause notice on more than one occasion and modifying it even on the day of its issue lend weight to the pleas made by Shri Lachman Dev in this behalf. We accept the contention of the learned Consultant that for purposes of limitation, should the need arise, the relevant date would be 3-10-1973 on which date the final show cause notice was issued to the appellants. 10. Another point on which lot of emphasis was laid by Shri Lachman dev pertains to the propriety and legality of the present proceedings pursued against the appellants when the same issue between the appellants and the Department stood finally decided by the order dated 7-11-1974 passed by the Appellate Collector of Central Excise, New Delhi. According to Shri Lachman Dev, the show cause notice leading to the issue of the above mentioned order of the Appellate Collector and the impugned appellate order were issued on the same dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different. Further, in the present proceedings, the lower authorities had discovered and relied upon several discrepancies in a number of invoices issued by the appellants. It could not, therefore, be assumed, as Shri Lachman Dev had pleaded, that the proceedings concluded by the order dated 7-11-1974 passed by the Appellate Collector, New Delhi, was fully applicable to the facts and circumstances of the present case. 12. We have heard both sides. Though there is some merit in the submissions of Shri Lachman Dev that it is not desirable to re-open issues once concluded between the two parties, yet there can always be exceptions. When a particular issue is once concluded through certain proceedings, the fact of fresh material emerging and giving a new dimension to the matter cannot be ruled out. This was precisely the stand taken by Shri Jain and on this point we are inclined to agree with the learned SDR. 13. The real basic issue in these proceedings relates to the fact whether the appellants were entitled to claim deduction of 37% discount for working out the assessable value of their products. From the facts of the case, we observe that at the relevant time the arrangement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the duty excess paid was more than the duty short paid. How could the Department in such circumstances, allege that the appellants were liable to pay duty to the tune of Rs. 3,16,099.08 ? 14. Shri Lachman Dev also urged that during the relevant period the appellants had issued more than 1,000 invoices but the Department had relied only on 51 invoices. What was the basis on which these invoices were picked up by the Department ? Further, these 51 invoices pertained to a period of 4 months only while the alleged short levy had been worked out for a period of 10 months or so. What was the rationale or legal basis in picking up only 51 out of more than 1,000 invoices and that too only for a period of 4 months of the entire period covered by the present proceedings ? Shri Lachman Dev stated that it was not known as to how the Department had satisfied itself about the representative character of these invoices qua the total short levy determined. These were vital lapses on the part of the lower authorities and since no satisfactory explanation was evident from the orders passed by them, it could be taken that the whole process of selection of the so-called representative invoices wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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