ORDER
Jyoti Balasundaram, Vice President
1. The applicants seek rectification of certain errors stated to be apparent from the record in Tribunal’s Final Order No. A-322-323/WZB/MUM/2006/C.III dated 10.2.06 holding that transaction value of dyes cleared by the appellants including cost of packing is to be adopted as the assessable value in view of the fact that the goods are sold from depot after re-packing into smaller packing and depot is also one of the “place of removal” under the provisions of Section 4(3)(c)(iii), and that there is no need to take recourse of the Valuation Rules since the value can be determined under Section 4(1)(a) of the Central Excise Act.
2. The applicants submit that depot was included as a place of removal only with effect from 13.5.03 while the period in dispute ranges from July 2001 to March, 2004 and therefore, for the period prior to 13.5.03, the Tribunal has committed an obvious error in reading of the statutory provisions. In this connection, they rely upon the Supreme Court judgment in Karamchand Premchand Pvt.Ltd. v. Commissioner of Income Tax, Gujarat wherein it has been held that a decision arrived at without taking note of the statutory provision was an order in which there was a mistake apparent on the face of the record. The applicants, therefore, contend that packing charges are not required to be included in the assessable value of their goods since the goods were cleared from the factory on payment of duty for being sold in the depot and hence transaction value will be the selling price of such goods (25kgs/50kgs pack) at the depot on the date of removal.
3. As regards the application of Section 4(1)(a), the applicants submit that this provision was never invoked against them in the show cause notice which invoked the provisions of Section 4(1)(b) read with Rule 7 of the Valuation Rules 2000 and a mistake apparent from the record thus arises in the light of Apex Court order in Hindustan Polymers Co. Ltd. v. CCE, Guntur 1999(106) E.L.T. 12 (S.C.) holding that it is not permissible for the Appellate Tribunal to proceed upon a basis altogether different from that of the demand notice served upon the assessee. Lastly, the applicants’ plea is that no finding has been recorded on the argument of time bar although they raised such plea in their appeals memorandum.
4. The prayer for rectification is opposed by the ld.D.R. who submits that the applicants are seeking re-hearing of the appeals in the guise of ROM application and that, in any event, since the period in dispute is both prior to end subsequent 13.5.03, no error arises in applying the provisions of Section 4(3)(c)(iii) interalia, defining depot as a place of removal. As regards the second submission of the applicants, the ld.DR would contend that no error arises from the Tribunal’s order in applying the correct legal provision viz. Section 4(1)(a). On the last submission, he points out that the ground of limitation has not been raised in the appeals and therefore, no error arises from the record in not considering a submission which was never advanced before the Tribunal.
5. We have heard both sides. We find that the applicants are correct in their submission that the depot was included as a place of removal only with effect from 13.5.2003. For the period prior thereto, packing charges are not required to be included in the assessable value of the goods since they were cleared from the factory on payment of duty for being sold in the depot and hence transaction value will be the selling price of such goods at the depot on the date of removal. As regards the finding that the provisions of Section 4(1)(a) are applicable, since the depot is a place of removal subsequent to 13.5.2003, no error arises from holding that the transaction value of such packages including cost of packing has to be adopted as the assessable value and this will apply for the period subsequent to 13.5.203. On the plea of time bar, we agree with the ld.D.R. that such arguments are not raised in the appeals and hence no error arises in not recording any finding thereon.
6. The ROM applications are accordingly allowed in part.
(Pronounced in court 30/3/07)