TaxTMI 
TaxTMI 
1999 (11) TMI 245
X X X X Extracts X X X X
X X X X Extracts X X X X
....he block boards would merit classification under sub-heading 4408.90 of the CETA, 1985 and based on such classification, confirmed a duty demand of Rs. 1,68,005.25. The Collector (Appeals) held that for the period in dispute block board was classifiable under sub-heading 4410.90, set aside the order confirming the demand and allowed the appeal. The appellants filed the appeal before the Tribunal praying that the classification of block boards for the period after 20-3-1990 may also be held to be under sub-heading 4410.90. They have also raised the issue about deduction of the duty element included in the price of block boards, for the purposes of arriving at the assessable value. 2.  The appellants have asked for a decision on merit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y to support their claim and after extending a reasonable opportunity of being heard before passing fresh orders in accordance with law. The appeal is disposed of in the above terms. Sd/- Jyoti Balasundaram Member (J) Dated : 27-3-1999 [Contra per : S.K. Bhatnagar, Vice President]. - With due respects to Hon. Member (J), my views and orders are as follows :- 5.  It is observed that the appellant's have sent a letter dated 15-3-1997 in which they have mentioned that in this appeal they had raised the question of correct classification of the block board. The Collector (A) had accepted the classification under the Heading 4410.90 for the period upto 20th March, 1990 but classified them for the subsequent perio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....duty being nil, only nil deduction could be allowed. Therefore, whichever way we look at it, there was no cause for interfering with the valuation on this score. The appeal is therefore rejected. Sd/- S.K. Bhatnagar Vice President Dated : 18-8-1999 DIFFERENCE OF OPINION 10. In view of difference of opinion between Hon. Member (J) and the Vice President the matter is submitted to the President for reference to a third Member on the following points :- 1. Whether in the facts and circumstances of the case, the appeal was required to be rejected or the matter was required to be remanded? Sd/- Jyoti Balasundaram Member (J) Dated 22-5-1999 Sd/- S.K. Bhatnagar Vice President....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uthority had not recorded any finding thereon no material had been placed before the Tribunal to enable it to give a conclusive finding on this point. Ld. Judicial Member had therefore remanded the issue for de novo adjudication by the appropriate authority after observing the principles of natural justice. 14.  Ld. Vice President in his separate order had taken the view that since block boards were cleared at nil rate of duty during the relevant period, the question of any deduction being allowed at a later stage did not arise. He had observed that even if it is hypothetically considered as a cum-duty price, then the component of duty being nil, only nil deduction could be allowed. In that view of the matter ld. Vice President had ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... duty should be calculated on the cum-duty price i.e. after deducting the duty element from the gross sale price of the goods and not on the basis of invoice value without duty element. He had also referred to some further decisions of the Tribunal, such as, Vapi Paper Mills v. C.C.E. [1993 (67) E.L.T. 109 Tribunal)] and Indian Oxygen v. C.C.E. [1997 (89) E.L.T. 557 (Tribunal)]. 16.  Ld. Counsel submits that since the claim of the assessee for benefit of deduction of the element of duty contained in the price of the product in terms of Section 4 had not been considered by the Collector (Appeals) in the impugned order, the view taken by the ld. Member (Judicial) for remanding the appeal to the appropriate authority was the correct vi....