COMMISSIONER OF C. EX. Vs. DCL POLYESTER LTD.

JUDGEMENT

(1.) THESE four appeals have been filed against the decisions of the Commissioner (Appeals), Bhopal, made in Orders -in -Appeal made on 18 -5 -1998. He has granted relief to the respondent assessees in respect of trade discount. The Commissioner (Appeals) has also held that as against depot price the factory gate price which are available in these cases have to be accepted as the price which is relevant for purpose of valuation under the Central Excise Act.

(2.) THE assessee respondents manufactured polyester filament yarn. They filed various price lists claiming abatement in respect of freight, octroi, insurance, sales tax, trade discount etc. They sold goods both at factory gate as well as at their depot. A show cause notice dated 27 -5 -1997 was issued whereunder the department sought to claim short duty of Rs. 1,65,39,278/ - and Rs. 1,79,409/ - on polyester filament yarn cleared to different depots by them during July, 1995 to September, 1995. The points for our decision was as to the acceptance of the factory gate pass as against depot price. The adjudicating authority namely the Assistant Commissioner by various orders disagreed with the claim by the assessee respondents against which four appeals were filed by the assessee. By the impugned order appellate authority after referring to the judgment of the Supreme Court in the case of Bombay Tyre International -1983 (14) E.L.T. 1896 and the judgment of Tribunal in the case of Lucas India Services - 1996 (83) E.L.T. 441 decided the case in favour of the assessee. In fact the appellate authority specifically referred to the judgment of the Supreme Court in the case of Indian Oxygen -1988 (36) E.L.T. 723. Against the said orders instant four appeals have been filed by the Department.

(3.) LEARNED DR, Shri Choubey contends that the approach of the appellate authority is wrong inasmuch as the factory gate price not been doubted reliance on the ruling in the Indian Oxygen case (supra) in the facts and circumstances of the case is wrong. He states taking the clue from ground No. 1 of the appeal that the issue involved in this matter is not a varied discount on clearances from factory gate and depot but the fact that the party has not at all passed on discount to the customers in certain cases and hence the said amount has been treated as extra consideration and thus chargeable to duty. This position has been countered by Shri Vipin Jain learned Chartered Accountant appearing for the respondent assessee that, that is not the case of the department as revealed in the show cause notice. Ground No. 1 taken in the appeal is that the case has been made against the assessees for the first time in the grounds of appeal before the Tribunal. During the course of the argument reference was made to the judgment of the Supreme Court in the case of G.O.I, v. Madras Rubber Factory Ltd., 1995 (77) E.L.T. 433.