TaxTMI 
TaxTMI 
2015 (2) TMI 88
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....ribunal, Chennai, was admitted by this Court on the following substantial question of law: "Whether the Tribunal is justified in allowing the assessee's appeal against the impugned O.I.A. on account of the doctrine of merger while the subject matters of the assessee's appeal and the department's appeal before the Commissioner appeal against the common order in original are entirely different?" 2. The brief facts are as follows: The first respondent/assessee cleared pre-stressed pipes (PSC Pipes) manufactured in their factory to the work site belonging t....
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....med not in the factory but removed to the work site and utilized for laying of pipes, the freight component should be added to the cost construction method adopted by the assessee. Accordingly the Adjudicating Authority passed an order dated 10.1.2006 demanding duty of Rs. 27,624/-. 5. Aggrieved by the order passed by the Adjudicating Authority, the assessee filed an appeal before the Commissioner (Appeals) contending that the addition of freight charges under cost construction method (captive consumption) was not correct and the duty paid on the cost of production plus profit margin as per Rule 8 of the Valuation Rules was correct. 6. The Commissioner (Appeals) vide order dated 12.7.2006 came to hold that when the place of removal of....
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....d concluding that the cost of transportation from factory to the work site is includable in the value for payment of duty. In view of the above, the appeal is allowed and the impugned order is set aside". 7. As against this order, the Department did not purse the matter any further. After the order passed by the Commissioner (Appeals), in Order-in- Appeal No.63 of 2006 dated 12.7.2006, the Revenue sought to file an appeal against the Order-in-Original dated 10.1.2006 before the Commissioner (Appeals) contending that the excise duty should be charged on the basis of sale price, i.e., tender breakup price of pipe per metre as laid. The Commissioner (Appeals) took up the department's appeal in Appeal No.25 of 2007 and by order dated ....
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.... way of appeal. 9. The Tribunal was of the view that in view of the order of adjudication passed by the Adjudicating Authority has been finally decided in Appeal No.63 of 2006 dated 12.7.2006, there was no order of adjudication in existence beyond 12.7.2006 for the Department to file an appeal. Thus the Tribunal, taking note of the fact that the issue raised and decided by the Commissioner (Appeals) in order in Appeal No.63 of 2006 dated 12.7.2006 has a direct bearing on the issue raised by the Department in Appeal No.25 of 2007, allowed the appeal filed by the assessee holding that doctrine of merger will apply to the case. 10. The Department, not satisfied with the order of the Tribunal, in allowing the appeal filed by the assessee ....
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....held that the transportation charges should not be included in the assessable value for payment of duty. He further held that the work site could be a "place of delivery" and not "place of removal" and hence the cost of transportation from factory to the work site should not be included in the value for payment of duty. Hence, the entire show cause notice came to be dropped. In the light of such order, the plea of the Revenue is that there is no doctrine of merger in the present case cannot be countenanced. What the Revenue seeks to review in the further appeal against the adjudication order is that the demand was made in the show cause notice on the basis of sale price. When the Commissioner (Appeals) vide order dated 12.7.2006 in Appeal N....