CLARIANT (INDIA) LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE applicants seek rectification of certain errors stated to be apparent from the record in Tribunal's Final Order No. A -322 -323/WZB/MUM/2006/C.III dated 10.2.06 holding that transaction value of dyes cleared by the appellants including cost of packing is to be adopted as the assessable value in view of the fact that the goods are sold from depot after re -packing into smaller packing and depot is also one of the "place of removal" under the provisions of Section 4(3)(c)(iii), and that there is no need to take recourse of the Valuation Rules since the value can be determined under Section 4(1)(a) of the Central Excise Act.

(2.) THE applicants submit that depot was included as a place of removal only with effect from 13.5.03 while the period in dispute ranges from July 2001 to March, 2004 and therefore, for the period prior to 13.5.03, the Tribunal has committed an obvious error in reading of the statutory provisions. In this connection, they rely upon the Supreme Court judgment in Karamchand Premchand Pvt.Ltd. v. Commissioner of Income Tax, Gujarat wherein it has been held that a decision arrived at without taking note of the statutory provision was an order in which there was a mistake apparent on the face of the record. The applicants, therefore, contend that packing charges are not required to be included in the assessable value of their goods since the goods were cleared from the factory on payment of duty for being sold in the depot and hence transaction value will be the selling price of such goods (25kgs/50kgs pack) at the depot on the date of removal.

(3.) AS regards the application of Section 4(1)(a), the applicants submit that this provision was never invoked against them in the show cause notice which invoked the provisions of Section 4(1)(b) read with Rule 7 of the Valuation Rules 2000 and a mistake apparent from the record thus arises in the light of Apex Court order in Hindustan Polymers Co. Ltd. v. CCE, Guntur 1999(106) E.L.T. 12 (S.C.) holding that it is not permissible for the Appellate Tribunal to proceed upon a basis altogether different from that of the demand notice served upon the assessee. Lastly, the applicants' plea is that no finding has been recorded on the argument of time bar although they raised such plea in their appeals memorandum.