Where the case is remanded to lower authority, it ought to pass order in conformity with the terms of remand.

PJ/Case Laws/2012-13/1293

CASE:ACUQA BISLERI (INDIA) LTD. VS. COMMISSIONER OF CENTRAL EXCISE, MUMBAI

CITATION:2012-TIOL-1482-CESTAT-MUM

BRIEF FACTS:The Revenue raised demand of duty on the ground that the applicants were taking non refundable amount from the customers as security deposit in respect of the reusable containers used in the manufacture of bottled water and Revenue wants to add this amount to the assessable value to the MRP. The demands were contested by the applicants on the ground that the cost of reusable containers has already been amortised and included in the MRP. The matter came to Tribunal and it vide final order remanded it back to the adjudicating authority with a direction to conduct audit under section 14A of the Central Excise Act, 1944 to find whether such amortised cost included in the valuation. But, the matter again remanded by Tribunal on account of non conducting of audit under section 14A of the Central Excise Act, 1944.

APPELLANT’S CONTENTION:The contention of the applicant is that the Tribunal while remanding the matter to the adjudicating authority directed it to conduct an audit of accounts under Section 14A of the Central Excise Act to ascertain whether the certificate given by the Chartered Accountant that the cost of reusable containers has been amortised and included in the MRP of the product is correct or not but no such audit has been conducted by the adjudicating authority and the impugned demand was confirmed. They submitted that the impugned order has been passed in violation of the direction of the Tribunal so, therefore the same is not sustainable. Further, as regards non submission of evidence, appellant contend that documents such as copies of Certificate of Chartered Accountant dated 20.03.2003, Expenses Summary Statement as per Trial Balance as on 31.03.2000, copy of worksheet of landed cost of packing materials, copies of purchase invoices of packing materials, etc. were submitted at the personal hearing but the same were not taken into consideration while passing the order.

RESPONDENT’S CONTENTION: The revenue submitted that the adjudicating authority specifically asked for the evidence in support of their claim and the applicants failed to produce the same when asked for and hence the order has been rightly passed.

REASONING OF JUDGEMENT: We find that the tribunal vide final order dated 20.01.2011, remanded the matter to the adjudicating authority to decide the issue afresh after conducting special audit as provided under section 14A of the Central Excise Act. The present impugned order is passed without complying with the direction of the remand order inspite of the fact that the appellant submitted the relevant documents. Therefore, the impugned order is set aside after waiving the pre-deposit of dues and the matter is remanded to the adjudicating authority to decide afresh in view of the directions given by the Tribunal in the remand order dated 20.01.2011 and after affording an opportunity of personal hearing to the appellant.

DECISION:Appeals are allowed by way of remand.

Comment:This case highlights the fact that whenever remand order is passed subject to some terms and conditions, the lower authorities are to abide by such terms and conditions while passing order. They cannot make out a new case out of the same and decide the matter afresh.

Comments

PJ/Case Laws/2012-13/1293

Post a Comment

Query