DAYA ENGINEERING WORKS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) The assessee as well as Revenue are in appeal against the same order. Both the appeals were heard together and are disposed of by this common order.

(2.) The appellants manufacture prestressed concrete sleepers for the Railways. The manufacture is under contract which contains provision for price variation. Some inputs like MCI inserts and HTS Wires are supplied by the Railways. Under two contracts manufacture for the period July, 1992 to June, 1996 were undertaken. Since the contract provided for price variation, a show cause notice dated 1 -4 -98 was issued by the Superintendent asking the assessee to show cause why a differential duty of about Rs. 35 Lakhs should not be paid by them in respect of the goods cleared from August, 1992 to June, 1996. The demand was confirmed by the Assistant Collector vide his Order -in Original No. 109/98, dated 27 -11 -98. Dissatisfied with that order the appellants moved the Commissioner (Appeal) and that Commissioner remanded the case vide his Order in Appeal No. 29 (KDT) CE JPR -II 2000, dated 12 -1 -2000 for re -consideration of the case after taking into account detailed information about cost of materials produced by the appellants. On reconsideration of the case, Asstt. Commissioner passed a fresh order holding that during the period in question, though higher duty was payable on account of the increased price of MCI, for the same reasons higher duty had been paid in respect of HTS Wires. After making adjustments of the amounts of duties paid, the Assistant Collector confirmed a duty demand of Rs. 1,16,790.94 vide his Order in Original No. 55/2000, dated 14 -6 -2000. The order also noted that this amount had already been deposited by the assessee on 23 -2 -1999. The Revenue filed an appeal against this order before the Commissioner (Appeals). The impugned order -in -appeal has been passed on that appeal of the Revenue. It has been held that the action of the Asstt. Collector in allowing adjustments, taking the entire periods as one, was not justified. He, therefore, ordered that a separate order should be passed for the period August, 1992 to 7 -8 -95. The impugned order has further directed that the Jurisdictional Deputy/Asstt. Commissioner will confirm the demand as per price variation on MCI inserts. The order has left the assessee at liberty to make their separate claim in respect of excess payment for HTS Wires.

(3.) In the present appeal, it is the submission of the assessee that the order passed by the Commissioner (Appeals) is grossly unjust in the facts of the case. The learned Counsel for the assessee submitted that from the show cause notice to the order -in -appeal price finalization for the entire period of 1992 to 1996 was taken up together. While there was escalation in respect of one item, there was price fall in respect of the other. It is the submission of the assessee's Counsel that it was just and proper that the higher duty in regard to one be set off against the lower duty in respect of the other and net amount alone be made payable. It is contented by the Counsel for the appellants that separate finalization of the assessment for the periods would only create avoidable paper work and hardship to the appellants. He also pointed out that the whole exercise of making separate assessments cannot lead to any different result in regard to Revenue inasmuch as assessments being provisional for the entire period, upon their finalization, the differential amounts would be payable by either side. As against the aforesaid submissions on behalf of the assessee, the learned SDR has pointed out that since the periods were covered by two separate contracts and the question of MCI inserts were involved only for the period up to 1995, the Commissioner (Appeals) was right in ordering separate finalization of assessments for the two periods.