ORDER
G.A. Brahma Deva, Member (J)
1. Appeal Nos. E/285 to 289/85-A are filed by M/s. Godrej Soaps Ltd. and the remaining Appeal Nos. E/532 & 533/85-A are filed by the Department, involving a common issue and therefore they are clubbed together and are being disposed of by this common order.
2. We have heard Shri G. Shivadass, Advocate for the appellants and the Department was duly represented by Shri Vijay Singh, ld. SDR, in all these cases.
3. The party has come in appeal aggrieved with the order dated 5-11-1984 of the Collector (Appeals), Central Excise, Bombay on merits whereas the Deptt. also filed appeal on the issue of time bar since the Collector (Appeals) has held that some portion of the demand was barred by time in these cases.
4. The issue involved in all these cases is regarding applicability of Section 4(4)(d)(ii) of the Central Excises & Salt Act. The appellants are engaged in the manufacture of soaps and are using minor oils in relation thereof.
5. The point to be considered in these appeals is whether the assessable value of soap and vegetable products manufactured by the appellants should be raised upward to include rebate which was granted on the excise duty subject to the conditions of Notification which was prescribed use of certain specified raw materials. Admittedly in these cases, the assessee did not pass on benefit to the consumers. It is submitted that in view of the nature of the Notification, the value cannot be revised even in the absence of such passing on. This claim was rejected by the Asstt. Collector and the party had to become unsuccessful before the Collector (Appeals) on merits.
6. The ld. Advocate appearing for the appellants submitted that certain rebate is allowed to the extent indicated in the Notification Nos. 24 & 25 of 75 dated 1-3-1975 which were issued under Rule 8 of the Central Excise Rules. The Excise Authority cannot re-determine the assessable value by including the rebate amount in the value in view of the circular dated 9-9-1987 issued by the Board. Further, the very issue had already been decided by the Tribunal in favour of the party as per its Order No. 790 to 962/89, dated 6-12-1989 and the same was followed by the Tribunal in the subsequent decisions in the case of Hindustan Lever Ltd. as per Order No. 904 to 969/90, dated 28-6-1990 [reported in 1994 (70) E.L.T. 745 (Tri.)] and the similar view was taken in the case of Rosan Detergents Pvt. Ltd. as per final Order No. 361 to 371 of 95A dated 20-7-1993. He produced the relevant copies in support of his contentions.
7. While countering the arguments, the ld. SDR submitted that the Deptt. was right in re-determining the value by including the rebate which was not passed on to the buyers. He said that since the amount of duty which was paid by the appellants was less than the amount of duty which was charged by them from the buyers. The Department would be at loss of Revenue if rebate is allowed as claimed by the appellants and the same is not permissible in view of the Explanation to Section 4(4)(d)(ii) of the Act. He relied upon the stand taken by the ld. SDR in earlier cases wherein the Deptt. referred to the decision of the Karnataka High Court in the case of U.O.I, v. Alembic Glass Industries Ltd. reported in 1992 (61) E.L.T. 193. He also contended that departmental clarifications and circulars are not binding on Courts or quasi-judicial authorities as it was held by the Supreme Court in the case of Bengal Iron Corporation v. Commercial Tax officer, reported in 1993 (66) E.L.T. 13 (SC).
8. We have considered the submissions made by both the sides. We take note of the fact that the issue involved in these case has already been considered by the Tribunal in earlier cases. We find that the Tribunal has taken a stand that the Board wants the Collectors to take a particular view which is advantageous to the assessees in view of the circular issued by the Board in respect of the pending assessment. In the instant case, the lower authorities have not considered the Board’s circular the Tribunal has remanded the matter for fresh consideration providing an opportunity to the assessee for pleading for the advantage in view of the contents of the circular in earlier cases and following the ratio of the earlier decisions, we are remanding all the matters. We also take note of the fact that in the Order Nos. 904 to 969/90-A, dated 28-6-1990, the Tribunal has taken a note of the observations made by the Supreme Court in SLP No. 4515/1977 Civil Appeal No. 1893/1974 in Western India Vegetable Products etc. v. J.R. Kartikar and Ors. Supreme Court in its order dated April, 6,1990 observed as follows:-
“In view of circular No. F. No. 90/3/87-CX-3, dated 9-9-1987 issued by the Central Board of Excise & Customs the civil appeal as well as the special leave petition are allowed. Both the parties are directed to act in accordance with contents of the circular. There will be no order as to cost.”
9, Following the ratio of the observations of the Hon’ble Supreme Court as well as the earlier decisions of the Tribunal, we allow these appeals and direct the concerned Asstt. Commissioner to re-assess the assessable value in the light of the Circular referred to above and pass an appropriate order after providing an opportunity to the assessee. In the argument of ld. SDR, it was also pointed out that Notification is in the nature of exemption and hence whatever the benefit drawn by the assessee is to be added to the assessable value.
Thus, these 7 appeals are allowed by way of remand.