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TMI Blog2016 (8) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... d 34-40 (Paper Book filed by Pearl Drinks Ltd.) 2. 18.1.1995 Letter from Pearl Drinks Ltd. to Suptd. of Central Excise, MOD-I giving clarification regarding determination of assessable value 30-33 (Paper Book filed by Pearl Drinks Ltd.) 3. 16.3.1995 Pricelists filed by M/s Pearl Drinks Ltd. effective from 16.3.1995 in Annexure-II giving sale price and deductions on transportation, container service and other service charges including trade discounts etc. 28-29 (Paper Book filed by Pearly Drinks Ltd.) 4. 30.6.1995 Letter from M/s Pearl Drinks Ltd. to Supdt. of Central Excise, MOD-I enclosing declaration of assessable value in Annexure-II effective from 1.7.1995. 25-27 (Paper Book filed by Pearl Drinks Ltd.) 5. 21.7.1995 Respondent wrote a letter to Asstt. Commissioner of Central Excise regarding details of deductions claimed on sale of aerated waters in glass bottles and stated that on account of annualized nature of determining these costs their assessable value may kindly be treated as provisional and it is only at the end of financial year after the finalisation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed (para 2) 44 (in Pearl Drinks Ltd. cross-objection) 14. 22.7.2002 Honble Tribunal passed Final Order No. 316/2002-A and Misc. Order No. 51/2002-A dismissing the Appeal filed by Commissioner as the Commissioners order has already merged in the Final Order of Honble Tribunal dated 24.1.2002. 15. 6.7.2010 The Honble Supreme Court vide their order allowed the appeal filed by revenue and remanded the matter for fresh disposal in accordance with law 68-54 16. 21.4.2011 The Honble Tribunal in Final Order No. 360/2011-Ex. allowed the Deptts Appeal setting aside the impugned order and matter is remanded to the Commissioner for passing appropriate order after hearing the parties. 82-70 17. 8.2.2012 The Honble Tribunal passed Misc. Order No. 261-262/2012-Ex.(BR) on Revenues application for extension of time. 90-82 18. 12.6.2012 M/s Pearl Drinks Ltd. made submissions before Ld. Commissioner. In para 9(e) it was submitted that there is adequate cushion available for setting off the alleged inadmissible expenditure and no duty is payable, as total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible come to Rs. 95585556/- while the total deductions claimed by them as per the show cause notice (based on the provisional figures) amounted to Rs. 58982962/- (out of which deductions amounting to Rs. 9704384/- only were held to be inadmissible). Ld. Advocate pleaded that if deductions under various heads permitted in the show cause notice only were taken into account and actual figures pertaining to those heads were allowed deductions then there would no demand at all. Indeed it might be a case involving refund. 3. Ld. DR, on the other hand, reiterated the contentions contended in the impugned order. 4. We have considered the contentions of ld. Advocate and also of the ld. DR. For the reasons which will become obvious in the following paragraphs, for the purpose of deciding this case we need not go into the merits of the deductibility or otherwise of the expenses incurred under the heads mentioned at (a) to (h) above which were held to be non-deductible for determining assessable value leading to the impugned demand. 5. The appellant in its letter dated 1.6.1994 had written to Asstt. Commissioner of Central Excise, MOD-I that the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction for own sale 2,644,696 Transportation cost per case 11.32 RETURNABLE CONTAINER SERVICES Shell repair cost 227,329 Empty exchange charges 1,120,198 Depreciation on containers 23,139,967 Less; profit on sale of containers 3,063,964 Interest on containers 91,100 Breakage, Burst and Leakage 12,127,184 Lease Charges 10,323,507 Total 43,965,321 Net production for own sale 2,644,696 Returnable container services per case 16.62 TRADE DISCOUNTS Contract arrangement 18,923.679 Other trade discounts 2,750,072 Total 21,673,751 Net production for own sale 2,644,696 Trade discount per case 8.20 TOTAL EXPENSES (A+B+C) 95,585,556 Per C/S 36.14 &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty was paid. However, we notice that it is a case involving determination of assessable value u/s 4 ibid by deducting permissible deductions from the wholesale price and the only issue involved is whether the impugned demand confirmed on the ground that certain deductions were not admissible is sustainable or not. 8. It is a fact that even as per the show cause notice expenses on account of transportation, container services and trade discounts were held to be deductible and accordingly provisional figures relating to these heads were allowed to be deducted in the show cause notice itself. The Honble Supreme Court vide its order dated 15.5.2015 observed as under : "By the impugned order, the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT) has dismissed the appeal of the appellant herein on the ground that the appellant could not produce the evidence to prove the expenditure incurred under certain heads, viz. rent for duty paid godown, depreciation for bottles and quantity discount given in kind. The position that was taken by the assessee before the authorities was that these expenditures could be actually as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible three heads. Consequently we need not go into the merits of disallowing the expenses incurred under the heads (a) to (h) mentioned earlier for the purpose of deciding whether the impugned demand is sustainable. E/3165/2012 11. Revenue is in appeal against Order-in-Original No. 3/D-I/2012 dated 25.6.2012 passed by the Commissioner, Central Excise, Delhi in terms of which he passed the following order: "I drop the demand of Central Excise duty relating to the inadmissible deductions covered under the above mentioned six heads as proposed in the show cause notice dated 3.11.1995. Consequently, the penal proceedings in the show cause notice dated 3.11.1995 in relation to claim of inadmissible deductions of the above six heads are dropped." 12. We have perused the impugned order-in-original dated 25.6.2012. Part of para 6 of the said order is reproduced below: "I have gone through the show cause notice, the party vide their letter PDL/Finance/Excise/195-90/15064 dated 2.11.1995 intimated that they claimed deduction of Rs. 31.27 per crate for 250/300 ml and Rs. 28.08 per crate for 300/500/1000 ml Soda in addition to the set off of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to inadmissibility of deductions is correct but the inadmissible deductions as discussed above pertain to the period 1994-95. The re-computation thus emerges as under: S. No. Description Amount 1. Total deductions claimed by the party during 1994-95 Rs.9,55,85,556/- 2. Total inadmissible deductions under eight heads pointed out by the Department Rs.1,37,97,580/- 3. 1-2 Rs.8,17,87,976/- 4. Deductions claimed by the party in 1995-96 Rs. 7,95,89,563/- 5. Cushion available i.e. deductions not claimed (3-4) Rs. 19,98,413/- Since the party's claim for taking shelter under the availability of cushion is thus supported by adequate admissible deductions being present resulting into offsetting the demand therefore. As such the question of demand and recovery of the duty in respect of such inadmissible deductions not pertaining to the year 1995-96 cannot be justified. In the wake of emergence of the peculiar situation as discussed above, I am left with no other option except to drop the demand relating to the six heads as detailed above, even though the deductions claimed under these heads are inadmissible. Thus, the penalty is not imposa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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