AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (7) TMI 180
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....s 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 refund of duty for a sum of Rs. 11,76,418.34 paid in excess f....
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....er 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 net price. The duty paid details calculated in the above said manner was less than the duty payable worked out the basis of CA Certificate. In view of the above,....
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...., 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 the opinion that the assessee has paid in excess of the extent of Rs. 223924/- (Duty paid Rs. 783,67,005/- less Duty payable Rs. 781,43,081/-), since the assessee vide their letter dated 29.09.2003 has affirmed that they will not be claiming refu....
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.... 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 of the said discrepancies, for which exercise, the matter requires to be remanded back to the lower authority. Ordered accordingly. 13. As regards the various abatements allowed by the ld lower authority, I am of the considered view that cartage and freight on depots, are eligible abatements so long as they repre....
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.... 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 substantial questions of law. 11. Heard learned Standing Counsel appearing for the appellant and the learned counsel appearing for the first respondent/assessee and perused the materials placed before this Court. 12. We find from the narration of facts that the plea of the Department before the Commissioner (Appeals) was the lowe....