9911796707
TMI Blog1988 (11) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Central Excise, Bombay in respect of M/s. Duke & Sons Pvt. Ltd. referred to as assessee in the show cause notice. The proceedings now stand transferred to the Tribunal under section 35F of the Central Excises and Salt Act, 1944 after this Tribunal was constituted and the matter is now being treated as an appeal before the Tribunal. 2. The brief facts of the case are that the appellants in the present proceedings had claimed refund on the ground that the element of equalised freight was included in the assessable value and should be allowed abatement. The Assistant Collector rejected the appellants claim for the abatement of the transport charges under Section 4(2) of Central Excises and Salt Act for the reason that there were sales at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Appellate Collector appears to have erred in holding that such equalised freight should not be included in the assessable value. The Central Govt. therefore, in exercise of the powers vested in them under Section 36(2) of the Central Excises and Salt Act, 1944 propose to set aside the order of the Appellate Collector of Central Excise, Bombay or to pass such order as deemed fit after consideration of the submissions of the assessee". 3. The learned Departmental Representative for the Department pleaded that before the provisions of new Section 4 came into force, the respondents filed a price list for approval in terms of new Section 4 with effect from 1.10.1975 vide their price list dated 15.9.1975 with a covering letter. He pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Assistant Collector was based in C.A. certificate for the period 1st July, 1974 to 30th June, 1975 which in fact has no relevant to the present refund claim. It also find that party has issued three types of cash memos for sale of soft drinks in Greater Bombay viz. (1) for cash sale at the factory (2) Direct sales to Industrial units (3) Cash sale through their salesmen in Greater Bombay. I also find that sales at factory gate vis-a-vis the total sales during the last 2 years were as under - Year Total Sale Sale at factory 30.6.1975-76 68,53,993 Dozen 1,661 Dozen 30.6.1976-77 73,86,719 Dozen 1,520 Dozen The party has no sales Department/godown in Greater Bombay and all sales are effected from the factory itself. I find that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arges have to be excluded from the assessable value, as they constitute post manufacturing costs. However, in the instant case, the figure of Rs. 1.06 per crate claimed by the appellants and allowed by the Assistant Collector, Central Excise, Bombay Dn VII, towards cost of transportation will not be correct figure, as it was based upon the figures given by the appellants for the period 1.6.1974 to 30.6.1975. The refunds claimed by the appellants relate to the period 1.10.1975 to 28.1.1978. The appellants, under their letter dated 28.12.1979 submitted certificates from their chartered accountants indicating the expenses of transport per crate as follows- Period Cost of transportation No. of crates Cost of transportation per crate 1.7.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cost of transportation. If any refund of duty accrues to the appellants as a result of modification of the prices, such refund of excess duty collected also would be granted to the appellants". 6. It is against this order of the Collector (Appeals), the learned Departmental Representative pleaded that the Government of India initiated the proceedings. He pleaded that in terms of Section 4 in case the price at which the goods were normally sold at the factory gate was available, the same should form the basis for assessable value and no abatement from this, except for the discount as allowed under Section 4 could be given. He pleaded originally when the appellants were allowed the abatement of Re. 0.81 and later Rs. 1.06 per crate, no evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, the same should be adopted for the purpose of assessment. 7. The learned advocate for the respondents pleaded that there was no dispute that the factory gate price as pleaded by the Revenue, included in the element of equalised freight. He stated that as it is, sales at the factory gate which had been made, were only stray sales made to their own employees on special occasions like birthdays, etc. or on festival occasions. He pleaded the decision of the lower authorities were given at a time when the law had not been settled by the judgment of the Hon'ble Supreme Court and that in view of the same, legally there was no infirmity in the order of the Collector (Appeals). He pleaded that the ratio of the judgment of the Hon'ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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