TMI Blog1999 (8) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... tice for hearing could not be served on the company as the same is remaining closed for a long time. Accordingly, notice has been served on the respondent under Section 37C of the Central Excise Act, 1944 by affixing the same on the main gate of the Unit by the Central Excise authorities. They have submitted Panchnama prepared evidencing such affixing of the notice. 3. The respondents are manufacturers of sulphuric acid and oleum falling under sub-heading 2807.00 of the Schedule to the Central Excise Tariff Act, 1985. They were collecting 4% to 10% of the price of the goods under heading S.C. They explained that these Service Charges were collected towards cost of servicing of tankers for transporting the goods and that the nature of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t paying the sales-tax even after collecting the same in the guise of sales-tax, it was for the buyers to agitate the matter for refund rather than for the Central Excise authorities to seek recovery of Central Excise duty on the amounts realised in the guise of service charges. 4. The Revenue are in appeal on the ground that the Collector s findings regarding time bar as well as on merits of the case are erroneous. They have submitted that the contract for sale and other documents covering the sale and purchase of the goods contained no provision for levy of service charge. Those documents specifically provided for levy of sales-tax. The respondents were using the service charge as a disguise and a device for collecting additional amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sales tax/service charges in the price lists submitted to the Deptt. or in any other manner. Therefore, the duty demand is recoverable for the extended period beyond six months in terms of proviso to Section 11A(1) of the Act. (i) The fact that the purchase orders/contract papers did not show recovery of service charges from the customers has been admitted by the assessee. (ii) The fact that the assessee did not disclose the recovery of service charges in the price lists has also been admitted by the assessee. (iii) There is no evidence produced on records to show that the assessee had submitted the documents showing recovery of some charges in the name of S.C. to the department in respect of the purchase orders submitted by them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and above the values disclosed in the Price Lists submitted to the department, the Collector was required to quantify such expenses keeping in view the number of tankers provided servicing and the amount incurred per tanker for making a comparison between the actual expenses incurred and the recoveries effected from the customers. The recoveries were effected from the customers in the manner as if these were sales tax amounts not having any nexus with the consignment-wise activities. If any, performed on tankers which did not even belong to the assessee. (ii) The Collector was also required to ascertain the manner in which the expenses on account of servicing of tankers were passed on to the customers during the period when the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods are sold, this additional realisation which forms part of the price was also liable to be included in the assessable value of the goods. The Collector s finding to the contrary was, therefore, erroneous and the order is required to be set aside on this ground. 7. It is clear from the appeal that the documents produced before the Central Excise authorities all gave the impression that the collections were sales tax/service charges. It was not at all disclosed that the collections bore no relation to sales tax/service charges and that they were at the same rate as the sales tax which was prevalent. Even if a certain cost is incurred towards delivery of the goods to the buyers inside the factory it is includible in the assessable val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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