TaxTMI 
TaxTMI 
2008 (4) TMI 245
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....e factory gate to depot and the amount of insurance of the goods during the transit. The adjudicating authority i.e. Assistant Commissioner, Central Excise & Customs, Division-II, Vadodara, by his impugned order dated 26.8.1997 rejected both the refund claims which pertained to the period subsequent to 28.9.1996. The adjudicating authority raised the following two issues in the said order : "(1) Whether or not the assessee is entitled to claim refund on merit, if so (2) Whether or not the assessee is entitled to get the refund amount or whether the amount is to be diverted to the consumer welfare fund." 4. On the merits of the first issue, the Revenue's case was that although the expenses in question were not includible for the assessment period prior to 28.02.1996 on account of judicial decisions, by virtue of the amendment of Section 4 of the Central Excise Act w.e.f. 28.02.1996, if the goods are removed from a place other than the factory gate and the price at which such goods are ordinarily sold from such place is higher than the factory gate price, that higher price would be the normal price for the purpose of assessment. The defence of the petitioner was that the ....
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....issues. 7. In the Second Appeal before the Tribunal, by relying on the decision of the Apex Court in case of VIP Industries Ltd. v. Commissioner of Cus. & C. Ex., Aurangabad ( 2003 (155) E.L.T.8 (S.C.)), the petitioner succeeded in persuading the Tribunal to reverse the finding of both the authorities below on the merits of the first issue. The Apex Court held in the above decision that where the price remains uniform or constant all over the country, value for the purpose of excise does not change merely because the definition of the expression "place of removal" is extended vide amended Section 4(1)(a) of Central Excise, w.e.f. 28-02-1996. Cost of transportation from factory to the depot is not includible in the assessable value where a manufacturer includes equalized freight in the price of the goods and sells them at an uniform price. The Tribunal accepted the above plea urged on behalf of the petitioner and held that the ratio of the Apex Court's decision in the above case applied to the petitioner's case. 8. On the second issue, the petitioner contended that the petitioner had paid the duty in question under protest and that the assessment was provisional under Rule ....
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.... under provisional assessment or final assessment would always be a question of fact and that the Tribunal was required to decide that question. The Tribunal was required to give finding on the issue which went to the root of the matter. According to the petitioner, the Revenue's own case was that the assessment was provisional as was clear from the order dated 14.10.2005 which was passed by Assistant Commissioner of Central Excise & Customs, Makarpura Division, Vadodara-II in which in the operative portion of the order it was stated as under : "1. The provisional assessment is finalised in totality considering all the permissible and non permissible elements of PME as per the law under Rule 9B of Central Excise Rules, 1944 for the period 01/01/1987 to 31/05/1998." Mr. Nankani submits that a part of the above period also covered the period for which the refund application was made by the petitioner. It is also submitted that the above order of the Assistant Commissioner has become final and the same has not been challenged by the Revenue. It is also submitted that if the assessment was final as contended by the department, the adjudicating authority would also have given a fi....
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....s issue because the adjudicating authority had decided the matter against the petitioner only on merits of the first issue and the appellate authority also decided the second issued against the petitioner only on the ground that the petitioner had not adduced any evidence. 14. In view of the above discussion, we are of the opinion that this petition is not required to be dismissed on the ground of availability of alternative remedy of appeal under Section 35G of the Central Excise Act, 1944 which permits the aggrieved party to challenge the order of the Tribunal on the ground that the order raises a substantial question of law. Obviously, in the facts of the present case, the question of law which was decided against the petitioner by the adjudicating authority as well as the appellate authority was ultimately decided by the Tribunal in favour of the petitioner. Before deciding the second issue against the petitioner, attention of the parties was required to be invited to that question and the Tribunal ought to have been satisfied that the adjudicating authority had given reasonable opportunity to both the parties to lead evidence on the second issue. Hence the matter is require....