TMI Blog2009 (4) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... side and we do so. Appeal is allowed with consequential relief if any. - E/80/2007 - 631/2009 - Dated:- 29-4-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Shri V.J. Sankaran, Advocate, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per: M.V. Ravindran, Member (J)]. - This appeal is directed against O-I-A No. 52/06, dated 31-8-06. The relevant facts that arise for consideration are as follows: The appellants are the manufacturers of Biscuits falling under Sub-heading No. 1905.11 of the Schedule to the Central Excise Tariff Act, 1985. In April, 1980, the appellants filed price lists claiming deduction of secondary packing, selling expenses and freight from their sale price, for determination of assessable value. As these deductions were not accepted by the Department, the appellants have started paying duty provisionally from 25-4-1980 on the assessable values claimed by them in terms of Rule 9B of the Central Excise Rules, 1944. Having failed to get the desired deductions on account of post-manufacturing expenses from the Department, the appellants have filed a W.P. No. 9270/81 in the Hon'ble Andhra Pradesh High Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documentary evidence substantiating their claims and were asked to show cause as to why their claims should not be disallowed if the documents substantiating their claims are not produced within the stipulated time. In reply to the show cause notice the appellants have filed statements showing expenses on account of freight and discounts; and an abstract showing month-wise excess payment alleged to have been made by them during the relevant period. On hearing the assessees in person the Assistant Collector of Central Excise, Hyderabad-III Division vide Order-in-Original C. No. 1/10/2/84-Legal, dated 21-2-1984 held that- (i) the claim that the tins are of durable and returnable nature is inadmissible; (ii) the incentives offered by the appellants to their dealers are not admissible as discounts since they are in the nature of gifts in kind; and (iii) equalized freight is admissible as deduction. Consequent to the appeal filed by the appellants against the Order-in-Original the Commissioner of Central Excise (Appeals) vide Order-in-Appeal No. 55/99 (H-III)C.E., dated 12-5-1999 has held that- (i) the cost of tin containers is includible in the assessable value; and (ii) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under:- (a) The Commissioner (Appeals) failed to appreciate the clear adjudicating order passed by the first adjudicating authority in regard to its correctness with reference to the abatements claimed. The first adjudicating authority had actually accepted those quantified amounts sought for abatement under secondary packing, freight and quantity discount. However, he rejected the claim on principle that the discounts claimed is not a trade discount but it is a sort of incentive and therefore that the abatement sought for was not available. The present Deputy Commissioner who readjudicated the case denied the benefits for abatements on a different ground that the customers did not know the existence of the discounts. This observation is factually incorrect, and made without appreciating the finding of the 1st adjudicating authority, the Asst. Collector. (b) The 2nd appellate authority committed error by observing, inter alia, that there is no evidence to say that the discount is not known to the buyer at the time of clearance and that the discount had been actually passed. By this order the learned Commissioner (Appeals) traversed like-wise beyond the terms of reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficate in which the duty has been quantified. It appears that the quantity discount has been made to the dealers. In view of those facts and circumstances of the case, we are of the considered opinion that the matter has to go back for de novo consideration by the Original Authority who shall consider the evidence furnished by the appellants in the light of submissions made by the assessee in the matter. The remand is restricted to this issue alone. The adjudicating authority is directed to dispose of the matter within a period of 4 months from the date of issue of this order, as the matter is old one." It can be seen from the above reproduced paragraph that the Bench had come to categorical conclusion that quantity discount has been made to the dealers. The bench has also observed very clearly that appellant in the first round of litigation had produced CA's certificate wherein duty has been properly quantified. The remand of the matter to the adjudicating authority was only restricted to quantification of the discount. It is seen from the orders of the adjudicating authority that the adjudicating authority has taken upon himself to travel beyond the order of the Tribunal inasmu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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