ORDER
Archana Wadhwa, Member (J)
1. After dispensing with the condition of the pre-deposit of duty of Rs. 1,31,712/- and penalty of an equal amount, we proceed to dispose of the appeal itself with the consent of both the sides.
2. An amount of Rs. 1,05,053/- has been confirmed against the appellant on the findings that an amount of Rs. 2 per MT collected by them from the customers for arranging their tankers for transportation of sulphuric acid is required to be added in the assessable value of the assessee. Learned Advocate Shri. R.J. Parakh, appearing for the appellants submits that in most of the cases the tankers are sent by their customers in which case nothing is charged from them. However, in a small percentage of transportation, the customers make a request to them to arrange for the transport. Inasmuch as the transportation of sulphuric acid is involved and has a hazardous effect, drivers as well as the cleaner is to be suitably trained by them, for which purpose they charged Rs. 2 per MT. He submits that the demand has been raised for a period of 5 years from June 96 to March 2001 in which case the bar of limitation will apply in as much as the allegation of suppression and misstatement made against them are not sustainable. He also relies upon the Hon’ble Supreme Court’s decision in the case of Baroda Electric Meters Ltd reported in 1997 (94) ELT 13 (S.C.) as also in the Tribunal’s decision in the case of Empire Industries Ltd. -1997 (95) ELT 653 (T).
3. Part of the demand i.e. Rs. 26,659.00 has been confirmed on the ground that the appellant were selling BDSA to their sister concern at the value lower than the one at which they were selling to the independent customers. The learned advocate however, fairly admits that as per the provisions of Rule 6 (b) (ii) of Central Excise Valuation Rules, 1975, the value of the goods sold to independent buyers was required to be adopted by them but assails the confirmation of the said demand on the ground of time bar by submitting that all the invoices showing clearance at lower value was being filed with the Revenue as such there is no justification for invocation of longer period of limitation.
4. Shri. Sanjay Singhal, Ld.JDR appearing for the Revenue reiterates the reasoning of the authorities below.
5. We have considered the submissions made by both the sides. In respect of first demand, we do not find any justification in the Revenue’s findings that the assessable value of the sulphuric acid has been diverted to transportation charges which the appellant was collecting at Rs. 2 per MT i.e. only a small percentage from their customers. The appellant have given a justifiable explanation that the said amount being charged for giving proper instructions and training to the driver and cleaners of the vehicle, inasmuch as a special care is required to be taken to transport the product like sulphuric acid. In any case even if the said amount of Rs. 2 per MT was being charged as a transportation charge from their customers, the same would not be included in the assessable value of the assessee in terms of Hon’ble Supreme Court decision in the case of Baroda Electric Meters Ltd. As such we set aside the demand confirmed against the appellant. As regards the second part of the demand, we find that the same has been raised for by way of issuance of show cause notice dated 02.08.2001 for a period from September 1998 to June 2000. As such the same is clearly barred by limitation. It is not the Revenue’s case that the appellants were not placing invoices showing clearance of the product at the lower value, in which case the longer period of limitation cannot be invoked against them. Accordingly, we set aside the said demand on the point of limitation.
6. Inasmuch as the demand has been set aside, the penalty is also set aside. Appeal allowed with consequential relief, if any. Stay petition also stands disposed of.