ORDER
K.D. Mankar, Member (T)
1. This appeal has been filed by the appellants M/s. Coolade Beverages Ltd. against the impugned order-in-appeal dated 28-1-2003 passed by the Commissioner (Appeals) vide which he has disallowed deductions in respect of “rent on containers” (ROC) and “freight” from the sale price to arrive the assessable value of aerated water. It was held that the deduction only of the actual cost incurred by way of ROC was admissible, and the onus to establish the actual cost was on the appellants. Vide a show cause notice dated 6-1-97, it was proposed to adopt Rs. 55.16 per crate as the assessable value instead of the declared value of Rs. 46.00 per crate. The show cause notice was adjudicated by the Commissioner of Central Excise, Meerut-I vide order-in-original No. 34/Commr./97, dated 17-6-97, wherein based on the judgment of the Supreme Court in the case of Collector of Central Excise v. Indian Oxygen Ltd., reported in 1988 (36) E.L.T. 730 (S.C.), show cause notice was dropped and the Assistant Commissioner was directed to finalise the provisional assessment kept pending for want of final decision on rent on containers and amount towards credit notes.
2. Vide order dated 12-2-98, the Assistant Commissioner of Central Excise Division-II, Ghaziabad implemented the order No. 34/Commr./97, dated 17-6-97 in terms of directions and findings contained therein. The said implementation order was reviewed by the Commissioner and was challenged by filing an appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide his impugned order dated 28-1-03, has set aside the implementation order of the Assistant Commissioner and disallowed the deductions on account of ROC and freight and also disallowed finalisation of assessment in respect of ‘Canister’. In the appeal before the Tribunal, the appellants are pleading to set aside the impugned order-in-appeal and praying for restoration of the order-in-original passed by the Assistant Commissioner.
2. Heard both sides.
3. It is noticed that, the order dated 12-2-98 passed by the Assistant Commissioner was to implement the findings arrived at by the Commissioner in Order No. 34/Commr./97, dated 17-6-97. It was pleaded by the learned Consultant that, the said order-in-original No. 34/Commr./97 was challenged by the Revenue by filing an appeal to the Tribunal. One of the grounds mentioned in Revenue’s appeal against Assistant Commissioner’s order dated 12-2-98 is that, the Commissioner’s order No. 34/Commr./97 was under challenge before the Tribunal through an appear filed by the Revenue, on the directions of the Board. Appeal against AC’s order dated 12-2-98, was therefore, as a consequence to the Revenue’s appeal against Commissioner’s order 34/Commr./97 filed before the Tribunal The Revenue’s challenge against the Commissioner’s order-in-original No. 34/Commr./97 was decided by the Tribunal and the Revenue’s appeal against the said order was dismissed by the Tribunal in the case of CCE, Meerut-I v. Coolade Beverages Ltd., reported in 2000 (116) E.L.T. 622 (T). The grounds which are pleaded before the Commissioner (Appeals) in the challenge against implementation order of the AC are similar to the grounds pleaded in the Revenue’s appeal which was dismissed by the Tribunal vide aforementioned order. Therefore, findings of the Commissioner (Appeals) on the ROC which are contrary to the said decision have to be set aside.
4. Apart from the above, it is also seen that, other findings in the order-in-appeal dated 28-2-2003 are also contrary to law. On the admissibility of ROC, it is stated in the appellate order that, the Commissioner’s decision on the admissibility of ROC is in principle. The claim has to be permitted only on the basis of actuals. Since the Tribunal has already dwelved upon this issue, after hearing the said argument in Revenue’s appeal, in terms of the decision referred to at 2000 (116) E.L.T. 622 (T) in the case of the appellants themselves, this finding of the Commissioner (Appeals) has to be set aside.
5. So far as the expenditure towards transportation are concerned, it has come on record that as against the actual expenditure ranging between Rs. 15/- to Rs. 35/- per crate, the claim has been restricted to Rs. 4.60 and Rs. 6.60 per crate. Therefore, there is no case for any addition to be made in the declared price.
6. So far as the findings in respect of ‘Canister’ is concerned, the order-in-appeal does not indicate as to what is wrong with the findings arrived at by the Assistant Commissioner. Since no reasons are given to support this finding, the same is vacated.
7. Accordingly, we set aside the impugned order and allow the appeal.
