TaxTMI 
TaxTMI 
2011 (10) TMI 432
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....id not include the freight/transport charges up to the distributors premises, distributor's commission and the rental for the canisters. The department was of the view that there are no sales at the factory gate and the sales are actually taking place from the premises of the distributors and, hence, the freight/transport expenses upto the distributor's premises, distributor's commission and also the rental for the canisters would be includible in the assessable value of the goods. It is on this basis that five show cause notices dated 18-10-2002, 30-4-2002, 22-1-2003, 30-10-2003 and 15-3-2004 were issued to the appellant for recovery of allegedly short paid duty amounting to Rs. 5,03,191/-, Rs. 4,40,410/-, Rs. 3,70,820/-, Rs. 89,164/- and Rs. 2,83,401/- respectively in respect of clearances of the goods during the period from March 1999 to March 2001, April 2001 to December 2001, January 2002 to September 2002, October 2002 to February 2003 and March 2003 to December 2003 respectively. The show cause notice dated 8-10-2002 had been issued by invoking extended period under proviso to Section 11A(1) of the Central Excise Act. While the show cause notice dated 8-10-2002 demanding dut....
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....ity, that since sales were taking place at the factory gate, there is no question of inclusion of the distributor's commission or the freight expenses from the factory gate to the distributor's premises, in the assessable value, and that as regards the rental for the canisters, the Tribunal in time appellant's own case for the period from January 2004 to September 2004 period, vide order reported in 2008 (230) E.L.T. 613, has held that the same are not includible in the assessable value. She, therefore, pleaded that the additional evidence sought to be introduced by the appellant vide miscellaneous petition Nos. 853-856/2009 may be admitted and that since this additional evidence clearly shows that all the sales of the appellant to their distributors were at the factory gate, the impugned order ordering inclusion of the distributor's commission and transport expenses upto the distributor's premises, in the assessable value and upholding duty demands on this basis, would not be sustainable. 2.2 Shri N. Pathak, the learned Senior Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) in the impugned orders-in-appeal an....
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.... the issue as to whether the transactions between the appellant and their distributors were on principal to principal basis and whether the distributor's commission and freight charges from the appellant's factory to the distributor's premises are includible in the assessable value or not, has been decided against the appellant in their own case vide judgment reported in 2008 (230) E.L.T. 613, in that judgment the invoices issued by the appellant clearly mentioning that the sales are at the factory gate had not been appreciated, that there is no res judicata in the taxation matters and in this regard, she relies upon the judgment of Hon'ble Supreme Court in the case of Commissioner of Income Tax, West Bengal v. Brij Lal Lohia and Mahabir Prasad Khemka reported in 1972 (84) ITR 273 (SC), that just because the transit insurance had been arranged by the appellant, it cannot be concluded on this basis that the ownership of the goods during transit was of the appellant and in this regard she relies upon the judgment of Hon'ble Supreme Court in the case of Escorts JCB Ltd. v. C.C.E., Delhi-II reported in 2002 (146) E.L.T. 31 (S.C.), that the bulk of the duty demand covered under show cau....
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....rincipal basis, at this stage, the same evidence cannot be admitted as additional evidence and considered afresh. In the case of CIT, West Bengal v. Brij Lal Lohia & Mahabir Prasad Khemba (supra) cited by the appellant, there was no dispute about the fact that the fresh evidence on the basis of which the question of genuineness of gifts during subsequent years was decided in favour of the assessee, had not been considered while deciding the same question for the previous period, but in this case, it cannot be said that documents sought to be introduced as additional evidence had not been considered by the Tribunal in the appellant's own case involving identical issues for the period from January 2004 to September 2004. The miscellaneous applications are, therefore, dismissed. 5. The question as to whether the appellant's transactions with their distributors were on principal to principal basis and whether the sales were taking place at the factory gate or on distributor's premises has already been decided by the Tribunal in its judgment dated 15-6-2007 in the appellant's own case for the period from January 2004 to September 2004 and, as mentioned above, in this judgment, the....