Cce, Meerut Ii vs M/S Merino Industries Ltd

Excise Appeal No. 818 of 2010 with Misc. Application No. 51898 of 2014

[Arising out of the Order-in-Appeal No. 425-426-CE/MRT-II/2009 dated 24/12/2009 passed by The Commissioner (Appeals), Customs & Central Excise, Meerut  II.]

For Approval and signature :

Honble Shri Rakesh Kumar, Member (Technical)

Honble Ms. Sulekha Beevi C.S., Member (Judicial)

1. Whether Press Reporters may be allowed to see :

the Order for publication as per Rule 27 of the

CESTAT (Procedure) Rules, 1982?

2. Whether it would be released under Rule 27 of :

the CESTAT (Procedure) Rules, 1982 for

publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair :

copy of the order?

4. Whether order is to be circulated to the :

Department Authorities?

CCE, Meerut  II Appellant

Versus

M/s Merino Industries Ltd. Respondent

Appearance

Shri M.S. Negi, Authorized Representative (DR)  for the Appellant.

Shri S. Sunil, Advocate  for the Respondent.

CORAM : Honble Shri Rakesh Kumar, Member (Technical)

Honble Ms. Sulekha Beevi C.S., Member (Judicial)

Final Order No. 51776/2015 Dated : 27/05/2015

Per. Rakesh Kumar :-

The facts leading to filing of this appeal by the Revenue are, in brief, as under.

1.1 The respondent are engaged in manufacturers of Decorative Laminates of different grade, shapes and designs chargeable to Central Excise duty and also pre-laminated particle board/MDF board falling under sub-heading 44109090 and 44119429 and also furniture falling under sub-heading No. 9403600 of the Central Excise Tariff. The period of dispute in this case is 2007-2008. During this period, the respondent had sales at the factory gate and also stock transfer to depots all over India from where the sales were being made. In respect of stock transfer to depot, the duty has been paid on provisional basis and in this regard the Jurisdictional Assistant Commissioner had passed an order in terms of Rule 7 of the Central Excise Rules, 2002. The provisional assessments were finalised by the Assistant Commissioner vide order-in-original dated 13/5/09 by which he disallowed deduction of octroi duty, but allowed the deduction of trade discounts. By this order finalising the provisional assessment, the Assistant Commissioner determined the respondents duty liability as Rs. 65,04,744/- and appropriated an amount of Rs. 61,97,943/- paid earlier by the appellant. While finalising the provisional assessment, the Assistant Commissioner had observed that a detailed chart showing the discounts claimed and the discounts found admissible had been prepared and had been shown to the authorised representative of the respondent who has verified those calculations. The Assistant Commissioner in para 5 of the order-in-original relating to personal hearing also observed that during the course of personal hearing, the Annexure which was prepared by the staff was shown to the respondents representative.

1.2 Against the above order of the Assistant Commissioner finalising provisional assessment, the assessee as well as Department both filed appeals to the Commissioner (Appeals). The assessee challenged the Assistant Commissioners order with regard to disallowing deduction of octroi paid by them while the Department challenged the Assistant Commissioners order before the Commissioner (Appeals) challenging the correctness of the quantification of the deduction on account of admissible trade discounts on the ground that the assessee did not disclose the nature of the discount and respective details thereof allowed to the customers from their depots and that Assistant Commissioners order has been passed without taking into account the above information and relied upon the figures of the depot sales and details of discount as arrived in respect of excisable goods sold through the depots. The Commissioner (Appeals) vide order-in-appeal dated 24/12/09 rejected the appeals filed by the respondent (assessee) as well as by the Department.

1.3 Against this order of the Commissioner (Appeals), both the respondent as well as Revenue have filed appeal. While the appeal filed by the respondent challenging the disallowing of the deduction of octroi has already been decided by the Tribunal vide final order No. 458 of 2010 dated 12/07/2010 by which the Tribunal holding that the deduction of octroi has to be allowed, has remanded the matter to the original Adjudicating Authority for re-quantification of the respondent duty liability. At that time the appeal filed by the Revenue against same order-in-appeal has not been tagged and therefore, this appeal had not been considered.

2. Heard both the sides in respect of Revenues appeal.

3. Shri M.S. Negi, the learned DR, assailed the Commissioner (Appeals)s order with regard to the quantification of the trade discounts and reiterating the grounds of appeal in the Revenues appeal, pleaded that the matter may be remanded to the original Adjudicating Authority for re-quantification of the trade discounts which are to be allowed after taking into account the details of the required information for each removal of the goods and each removal should be individually considered for arriving at the assessable value.

4. Shri S. Sunil, Advocate, the learned Counsel for the respondent, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and pleaded that there is no justification for the Revenues request for remand of the matter to the original Adjudicating Authority as, as is clear from the findings in the Assistant Commissioners order-in-original and the finding of the Commissioner (Appeals) in the order-in-appeal, the quantum of deduction on account of trade discounts had been determined on the basis of the verification done by the Range staff. He, therefore, pleaded that there is no merit in the Revenues appeal.

5. We have considered the submissions from both the sides and perused the records.

6. On going through the appeal filed by the Revenue, we find that the dispute is only about the quantification of the trade discounts whose deduction is to be allowed. There is no dispute about eligibility of the trade discounts for deduction. The Departments contention is that the quantum of trade discounts whose deduction is permissible must be determined on the basis of the details of each clearance and that the manner in which the Assistant Commissioner has quantified the account is not correct. Since, the dispute is only about quantification, we set aside the Commissioner (Appeals)s order with regard to the quantification of the trade discount and remand the matter to the original Adjudicating Authority for re-determining of the quantum of trade discount based on consignmentwise details. The Revenues appeal stands disposed of as above. Since, the matter has disposed of, the miscellaneous application for early hearing is dismissed as infructuous.

(Dictated and pronounced in open court.)

(Rakesh Kumar)

Member (Technical)

(Sulekha Beevi C.S.)

Member (Judicial)

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