MAURIA UDYOG LTD. Vs. CCE

JUDGEMENT

(1.) THESE two cases have a chequered history. Show cause notice was issued to the appellants proposing recovery of duty of Rs. 12,24,492/ - on the ground that freight charges from the appellant's factory to the buyers place were includible in the assessable value. Penal action was also proposed in the notice. The demand raised in the notice was confirmed and penalty of equal amount was imposed on the appellants. In appeal, the Commissioner of Central Excise (Appeals) upheld the duty demand but reduced the penalty to Rs. 4.5 lakhs. Against the demand confirmation, the assessee came up in appeal to the Tribunal; against the reduction in the quantum of penalty, the Revenue came up in appeal to the Tribunal. In the appeal of the assessee, predeposit of Rs. 2.5 lakhs was directed in terms of Section 35F of the Central Excise Act, 1944 and due to non -compliance with that order, the appeal of the assessee was dismissed by the Tribunal on 12.12.2000. In the meanwhile, the appeal of the Revenue against the order of the Commissioner (Appeals) who reduced the penalty was dismissed by the Tribunal. When the application for restoration for the appeal of the assessee was taken up for hearing, it was brought to the notice of the Bench by the Revenue that their appeal against the order of the Commissioner (Appeals) had been dismissed and consequently, it was argued that the order of the Commissioner (Appeals) got merged into the order of the Tribunal and, therefore, the Tribunal could not entertain the appeal of the assessee. The Tribunal accepted that submission and thus dismissed the ROA application and the appeal of the assessee. The matter was carried in appeal to the Supreme Court by the assessee which vide its order dated 16.8.2002 held as follows:

(2.) THE Hon'ble Supreme Court restored the appeal filed by the appellants to the file of the Tribunal for decision on merits in accordance with law. Vide a separate order dated 26.2.2003, the Supreme Court disposed of Civil Appeal No. 5354 of 2001 of the Commissioner of Central Excise, New Delhi by directing that this appeal should also be decided on merits along with the appeal of the assessee which had already been sent to the Tribunal. This is how both the appeals came up for hearing before us.

(3.) AS for as the assessee's appeal is concerned, we find that issue of freight charges from the factory of the appellants to the buyers premises being includible in the assessable value or not, stands decided in favour of the assessees by the Apex Court decision in