TMI Blog2015 (7) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... er duty. The Department's plea that no fresh grounds have been brought in appeal before the Commissioner (Appeals) is erroneous, as we have already pointed out, in the appeal, as a first ground, they have raised a plea that RT12 returns were not considered, which is factually incorrect. - Decided against Revenue. - C.M.A. No. 2274 of 2007 - - - Dated:- 19-6-2015 - R. Sudhakar And K. B. K. Vasuki,JJ. For the Appellant : Mr. Rajnish Pathiyil For the Respondents : Mr. T. Ramesh - R1 JUDGMENT (Delivered By R. Sudhakar, J.) Aggrieved by the order passed by the Tribunal in allowing the appeal filed by the first respondent, the Revenue/appellant is before this Court by filing the present appeal. This Court, vide order dated 24.09.2007, while admitting the appeal, framed the following substantial questions of law for consideration :- (a) When the whole matter relates to provisional assessment and when provisional assessments are considered provisional for all issues relating to the determination of the correct assessable value and when only the factual discrepancies and ineligible abatements covered by the provisional assessment are sought to be rectified by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty payable (as shown in the table below). Years Duty Payable (As per CA Certificate) Duty paid (worked out by the Dept.) Differential Duty 1992-93 14116370.8 14093571.92 22798.88 1993-94 15398250.58 14892913.61 505336.97 1994-95 17404129.54 17186094.54 218035.01 1995-96 19348528.29 19158138.46 190389.83 1996-97 (SEP'96) 12837429.29 12457918.72 379510.57 TOTAL 79104708.50 77788637.25 1316071.25 In view of the above, M/s.Tablets India Limited are directed to show cause to the Deputy Commissioner of Central Excise, C Division, No.121, Mahatma Gandhi Road, Chennai - 600 034 within 30 days from the date of receipt of this notice as to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity gave a finding in respect of each one of the goods to determine the assessable value by framing the following two issues: 1. Whether cash discount is to be allowed to all the products or only in the case of products where the assessee has claimed the abatement in the price lists. 2. Whether the calculations of the department adopted to arrive at the duty paid details incorporated in the Show Cause Notice is correct. 5. On the first issue, the Jurisdictional Authority held that the cash discount should be allowed only when claimed in the price lists and accordingly, upheld the working of the Department. Insofar as the second issue is concerned, he accepted the assessee's contention that the established practice of finalization of provisional assessment should be followed. However, he came to the conclusion that based on the duty paid details available with the Department in the Annexures and the claim for abatement on the basis of his Chartered Accountant's certificate, there appears to be a clear case of excess payment of duty. In this regard, the Jurisdictional Authority further held as follows: I endorse the assessee's reasoning that cash disco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pre-para. I proceed to pass the following order ORDER I drop the demand proposed the Show Cause Notice in the light of the above observations. I finalise the provisional assessments for the years 1992-93 to 1996-97 (Sep.'96) in terms of Rule 9B of CER 1944 and the duty paid in excess determined on finalization is not refundable. 7. Not satisfied with the order passed by the Jurisdictional Authority, the Department pursued the matter by filing an application under Section 35E(4) of the Central Excise Act, 1944 before the Commissioner (Appeals) raising the following grounds: The main Grounds of Appeal preferred by the Applicant are: The lower authority has relied upon the working-sheets and the Chartered Accountant Certificates submitted by the respondent assessee without taking into account the data available in the RT 12 Returns and other relevant documents filed from time to time by the respondent assessee. The clearance of a product namely Relasmin injection (2ml) was in singles during the period 1995-96 whereas the clearances were in 100s during the period 1994-95. But in the worksheet of the final assessment order, the clearances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffered duty.) also. However, I am of the considered view that freight incurred for bringing back the sales return goods to either depot or factory premises is not entitled for abatement. As regards the abatements such as freight on export clearances, the same are not entitled for abatement in as much as the export goods are normally cleared under bond without payment of duty or for claim for rebate and such goods are not covered under provisional assessment. Packing and forwarding charges form part and parcel of the cost of production and hence the same are includible in the assessable value. The lower authority will therefore be required to re examine these aspects with reference to the data available and pass such orders as deems fit. Ordered accordingly. 9. Aggrieved by the said order, the assessee pursued the matter before the Tribunal. The Tribunal, after taking note of the fact that the Jurisdictional Commissioner finalised the assessment under sub-rule (5) to Rule 9B of the Central Excise Rules and dropped the proceedings, held that the appeal filed under Section 35E(4) claiming higher differential duty of ₹ 37,65,075/- was not justified and such a demand could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the assessee and therefore the lower Authority had passed an erroneous order while finalising the provisional assessment. The other grounds raised are quantification of freight charges to arrive at the revised figure of ₹ 31,71,218/-. 13. The primary ground on which the order of the provisional assessment was sought to be revised appears to be on an erroneous assumption that records like RT12 returns was not considered by the lower Authority. We have already extracted the show cause notice and the order of the Original Authority, which clearly show that the claim of the assessee for finalising of the provisional assessment and for refund of duty was based on RT12 returns and the abatement claim in respect of the goods cleared was supported by the Chartered Accountant's certificate and the manner in which similar provisional assessment was made for the previous years. The Original Authority, in extenso, dealt with the matter as to how the two issues that he raised were considered and gave a reasoned finding. 14. We find that in the present case the revised demand for higher duty is merely based on a presumption that one or other factor has not been consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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