TaxTMI 
TaxTMI 
2015 (7) TMI 180
X X X X Extracts X X X X
X X X X Extracts X X X X
....sioner (Appeals), whether the appellate Tribunal is right in holding that the Commissioner (Appeals) has travelled beyond the show cause notice? and (b) When the provisional assessments are covered by independent provisions and when no fresh grounds have been brought out in the appeal by the appellant before the Commissioner (Appeals), whether the appellate Tribunal is right in holding that it was not open to the appellant to demand as differential duty a higher amount than what was demanded in the show cause notice, by way of an explanation under Section 35.E(4) of the Central Excise Act, 1944 against the order passed by the original authority?" 2. The first respondent/assessee is engaged in the business of manufacturing medicines falling under Chapter 30 of the Central Excise Tariff Act, 1985. They were claiming abatement towards quantity discount, freight, cash discounts and turnover tax from the assessable value during the years 1992-93 to 1996-97. Since the actual abatements were known only at the end of the financial years, they resorted to provisional assessment. By a proposal for finalizing the provisional assessment for the said period, the assessee claimed ref....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Central Excise Rules." 3. In response to the above-said notice, the assessee filed objections and thereafter, the Jurisdictional Officer passed an order observing as follows: "The proposals for finalization of the Provisional Assessment from 1992-93 upto September 1996 along with Chartered Accountant's Certificate for the said period were submitted by the assessee. On perusal of the finalization proposals it was noticed that the abatements claimed was more than the abatements allowable as per the C.A.Certificate. In such case, when the abatements claimed was more than what was allowable, the assessable value will be less and hence duty paid will also be less when compared to duty payable. But the assessee in the finalization proposal claimed refund of duty based on the duty paid as per RT12 and duty payable, which was worked out on the basis of the assessable value arrived after deducting allowable abatements as per the CA Certificate above the abatements claimed was more than the abatements allowable and the assessee still claimed refund of duty, the Department chose to work out the duty paid by deducting the abatements actually claimed from the ne....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the assessee in the assessable value relating to 1994-95, despite the difference in the duty worked out by the department in the annexures and summary of the SCN, the demand amount scales, down. when duty payable is deducted from the duty paid details arrived in the SCN. However, the duty payable as per the CA certificate works out to less than the duty paid determined as per the statutory records resulting in refund of duty. Having concurred with the assessee's contention that statutory records should be the basis for computing duty paid particulars, verification of records reveals that the assessee has paid duty for the clearances made under provisional assessment which are as follows:- 1992-93 Rs.1,41,68,553/- 1993-94 Rs.1,54,49,847/- 1994-95 Rs.1,63,90,588/- 1995-96 Rs.1,94,99,910/- 1996-97 Rs.1,28,58,107/-(upto 9.96) Total Rs.7,83,67,005/- The above duty paid particulars does not include duty on free supplies of samples as in samples clearances, no abatements were claimed." 6. In the result, the Jurisdictional Authority passed the following order by dropping the proceedings. "I am of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n from the sale price to arrive at the value. But the same were allowed by the lower authority resulting in loss of revenue of Rs. 31,71,218/- for the period in question." 8. The Commissioner (Appeals), after hearing both sides, came to hold as follows: "12.I have gone through the records, arguments and submissions made in this case. I find that it is a fact that figures in the RT-12 Returns and working sheet attached to final assessment order are not matching. The Applicant Department has pointed out that the assessment order has failed to take into account the correct quantity of Relasmin Injection (2ml) cleared. I further find that the assessment order has proceeded on the basis of price of Rs. 1.70 per pack of Relasmin Injection 100x 2ml. Considering that even as per the "worksheet showing the assessable value as finally determined under section 4 on finalisation of price lists" for the period 01.04.91 to 31.07.91, the whole sale price is Rs. 105/-, it does not appeal to reason that the same item is sold as Rs. 1.70 for the period 1992-93 for the same pack. Obviously there is a discrepancy. The entire worksheet therefore require to be re-examined for reconciliation ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d total differential duty of Rs. 13,16,071.25 from the assessee. The assessments were finalized by the Dy.Commissioner who found excess duty payment of only Rs. 2,23,924/- by the assessee. While the assessee accepted this decision of the original authority, the Revenue wanted to recover from them an amount of duty much higher than what was demanded in the SCN. This action of the Revenue, not permissible in law, was upheld by the lower appellate authority. If the department had a case that the finalization of provisional assessment required to be made on a basis different from what was proposed in the SCN, they should have issued an appropriate corrigendum to the said notice. It was not open to them to demand as differential duty a higher amount than what was demanded in the SCN, by way of an application under Section 35E(4) of the Central Excise Act against the order passed by the original authority in adjudication of the dispute arising out of the SCN. Hence the impugned order accepting the department's appeal against the Dy.Commissioner's order cannot be sustained." 10. Aggrieved against the order of the Tribunal, the Department is before us raising the above-mentioned....