ORDER
Jyoti Balasundaram, Vice President
1. After hearing both sides on the application for v/aiver of pre-deposit of duty ( out of the total duty demand of Rs. 2,40,82,769/-, the applicants state that they have deposited Rs. 1,97,40,847) and penalty of equal to duty figure mentioned above, we found that it is possible to dispose of the appeal itself at this stage and hence we proceed to do so with the consent of both sides, after granting the prayer for waiver of pre-deposit.
2. The appellants are engaged in the manufacture and outright sale of
audio and video CDs falling under Chapter heading 85.24. The demand
arises as a result of including royalties paid by the Music companies after
obtaining the copy rights. It is the submission of the appellants that royalty amount is not includible and, further, everrif the: quantification is not correct, for the reason that the authorities below have adopted royalty paid
by the two companies viz. M/s. Universal Music India Ltd. and M/s. Tips
India Ltd. as the basis for inclusion, even in respect of other companies for
the reason that balance sheet of those companies have not been produced
for verification before the Adjudicating authority or lower Appellate
Authority they submit that they have produced Chartered Accountant’s
certificate Showing royalty paid by the other companies and plead that a
fresh opportunity be given to them for production of balance sheets of other
companies in order to establish what was the royalty paid by those
companies. They also submit that the department may be directed to call for the documents which they consider necessary for purpose of
determination how the royalty to be included in the assessable value of the goods manufactured by the appellants.
3. On hearing both sides, we hold that hi the interest of justice, the matter be considered afresh after extending an opportunity to the appellants for obtaining the balance sheet of the other companies who have paid royalty and, we therefore, set aside the impugned order and remand the case to the Asstt.Commissioner/Dy.Commissioner for fresh decision both on the basic issue contested by the appellants herein (which is contrary to the decision of the Tribunal in their own case as seen from the Final Order NO.A/402/WZB/2G04-C.II dated 11.6.04 cited by the SDK) and for considering further the issue of quantification if the first submission is not existed.
4. The department is also directed to issue summons to the Music Companies in question and call for and examine the balance sheets.
5. We make it clear that it shall not be open to the appellants to seek refund of the duty amount stated to have been paid viz. Rs. 1,97,40,8477-till the disposal of the matter afresh under the remand order.
6. The appeal is allowed by remand.
(Dictated in Court)