2005 (98) ECC 335 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(A)

Shri V.K. Agrawal, Member (T) and Shri P.S. Bajaj, Member (J)

CCE, Delhi-II

Versus

Trishul Research Laboratories

Appeal No. E/614/2004-NB(A)

[Arising out of Order-in-Appeal No. 399-CE/DL-II/2003 dated 7.1.2004 of the Commissioner of Central Excise (Appeals), Delhi-II]

Final Order No. 880/2004-NB-A, dt. 10.8.2004, Certified on 2.9.2004

Central Excise Act, 1944

Section 4 -- Assessment -- Clearances of the goods to the hotel industry fall outside the purview of the Section 4A and that the goods were liable to be assessed under Section 4.

Appeal allowed

PRESENT :

Shri R.C. Shankhla, SDR for the appellant.

Shri K.K. Anand, Adv. for the respondent.

Cases Cited :

1. CCE v. Tribunal Research Laboratories Pvt. Ltd., 2002 (144) ELT 204 (Tri)......... [Para 6]

2. Ishaan Research Laboratories Pvt. Ltd., Final Order No. 442-443/04-B dated 9.6.2004 [Para 6]

Per : P.S. Bajaj

In this Appeal which has been filed by the Revenue against the impugned Order-in-Appeal, the issue relates to the assessment of the goods under Section 4A instead of Section 4, which were cleared by the respondents during the period July to Feb., 2001 involving differential duty of Rs. 61,671.

2. We have heard both the sides.

3. The respondents are engaged in the manufacture of various varieties of soaps, as detailed in the show cause notice, they effected clearance of their goods to different hotels at contractual price during the period in dispute and claimed abatement @ 35% on MRP under Section 4 A of the Central Excise Act.

4. They were served with a show cause notice for not paying the differential duty as the provisions of Section 4A of the Act were not attracted to their case. The adjudicating authority confirmed the demand against the respondents by applying the provisions of Section 4 of the Act for the purpose of payment of duty. The Commissioner of Central Excise (Appeals) has reversed that order and given the benefit of Section 4A of the Act.

5. The Ld. SDR has produced the copy of the order passed by the Tribunal in the respondents own case for the earlier period denying them the benefit of Section 4A of the Central Excise Act and contended that the impugned order in the light of the said earlier order deserves to be set aside. The Ld. Counsel for the respondents, on the other hand, has produced copy of the order passed by the Tribunal in CCE, New Delhi v. M/s. Ishaan Research Laboratories Pvt. Ltd. where in an identical facts and circumstances, the provisions of Section 4A had been applied by the Tribunal for the purpose of valuation and computation of the duty.

6. The Ld. Counsel has not disputed that for the earlier period in the respondents own case in CCE v. Tribunal Research Laboratories Pvt. Ltd., 2002 (144) ELT 204 (Tri), the plea of the respondents that their clearances of the goods to the hotel industry were liable to be assessed under Section 4A of the Act and not under Section 4, was negatived by the Tribunal. It was observed by the Tribunal that the goods cleared by the respondents fall outside the purview of the Section 4A of the Act and that the goods were liable to be assessed under Section 4. This judgment of the Tribunal in the respondent's own case for the earlier period, had attained the finality having been not challenged before the higher forum. The fact that this judgment had been distinguished by another Bench of the Tribunal in the case of M/s. Ishaan Research Laboratories Pvt. Ltd., (Final Order No. 442-443/04-B dated 9.6.2004 and in that case, the assessment was allowed to be made under Section 4A of the Act, is not of any avail to the respondents. The earlier order passed in their own case is binding on them and no capital out of the observations of the Tribunal in the case of another assessee, regarding that judgment, can be made by the respondents.

7. In the light of the earlier judgment of the Tribunal in the respondent's own case, referred to above, the impugned order of the Commissioner (Appeals) cannot be sustained and the same is set aside. The Order-in-Original of the adjudicating authority is restored and the appeal filed by the Revenue is accepted.

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