Customs, Excise and Gold Tribunal - CalcuttaIndian Oil Corporation vs Commissioner Of Central Excise on 9 July, 2003Equivalent citations: 2003(159)ELT933(TRI-KOLKATA)ORDER


 

Archana Wadhwa, Member (J)1. After hearing Shri P.K. Das, ld. Advocate for the appellant and Shri A.K. Mondal, ld. SDR for the Revenue we take up the appeal itself with the consent of both the sides.2. The duty for the first time was made on the basis of the assessable value in respect of the appellants' products w.e.f. 1-3-1994. The dispute involved in the present appeal relates to the inclusion or exclusion of notional railway freight charges in the assessable value. As per the appellants they were showing the said notional railway freight charges in the invoices being issued by them, which invoices were also being supplied to the Revenue. However, no duty was being paid on the said notional railway freight paid under the impression that the same do not form a part of the assessable value.3. Shri P.K. Das, ld. Advocate submits that the period in the present case relates to 1-3-94 to 27-9-96 and the show cause notice has been issued on 11-2-99. He submits that the dispute about the inclusion of the said notional railway freight in the assessable value of the appellants' products was resolved by the Board by way of issuance of a circular dated 21-6-96 and thereafter the Ministry of Petroleum and Natural Gases issued another circular dated 28-9-96 directing the appellant to pay duty on the assessable value inclusive of such notional railway freight. Thereafter the appellants started paying duty.4. Shri Das does not dispute the duty demand on merits but submits that the entire demand is hopelessly barred by limitation. He submits that for the same period they were issued earlier a show cause notice on 18-3-97 which was adjudicated by the Deputy Commissioner on 2-9-98. In that show cause notice the demand of duty was raised for the period 1-3-94 to 7-1-97. While adjudicating, Deputy Commissioner observed that there was no suppression on the part of the assessee regarding the realisation of the charges from their depots and as such the extended period was not available and the duty can be confirmed only for a period of six months from the date of show cause notice. As per Shri Das the said order was not appealed against by the Revenue and was accepted. Thereafter surprisingly they received another show cause notice on 11-2-99 raising demand of duty on identical grounds for the same period, which was covered by the earlier order of the Deputy Commissioner. He submits that when this fact was brought to the notice of the Commissioner during the course of adjudication, he has observed in his impugned order that the dispute in that case was for different period and the entire demand was not dropped as time barred. However, we find that the above observations made by the Commissioner are not correct inasmuch as the dispute in his impugned order is for the period 1-3-94 to 27-9-96 whereas the dispute in the order of the Deputy Commissioner was for the period 1-3-94 to 7-1-97. As such it is seen that the entire disputed period present in the impugned order of the Commissioner was covered by the period in the order of the Deputy Commissioner. It is very unfortunate that the Commissioner instead of verifying the facts and appreciating the appellants' contention on the above point has lightly dismissed the same by giving an observation on wrong facts that the dispute was for a different period, in his anxiety to confirm the demand against the appellant. If the department was not happy with the order of the Deputy Commissioner dropping the demand as time barred, they were at liberty to challenge the same before the higher authorities instead of issuing another show cause notice after a long gap to them raising the demand on the same issue and in respect of the same period.5. In view of the foregoing we allow the stay petition unconditionally and set aside the impugned order with consequential relief to the appellants.