ORDER
Gowri Shankar, Member (T)
1. The mistake apparent on the record as stated by the counsel for the applicants is as follows: “One of the argument that has been recorded by the bench in paragraph 6 of its order, is that prior to May, 1984 sums collected as handling/service charges was credit by the assessee in the head “transport charges”. The amount credit as transport charges from 1st April,1983 to 31st December 1983 was transferred to the head “sales promotion expenses”. Since this amount did not form any part of the deduction as claimed, the duty has already been paid on it. Therefore, it is now contended, consequent upon the findings of the bench that the deduction on account of handling charges was not permissible, the amount of such handling charges which are already suffered duty should have been taken into account in deciding the duty actually paid.
2. The departmental representative contests this view. The departmental representative contends that on being asked to substantiate the claim that the handling charges had in fact been credited in the head “transport charges”, the counsel for the appellant expressed his inability to furnish any evidence to substantiate the same. Therefore, he says that the question of any deduction did not arise.
3. The departmental representative’s contention has not been challenged by the counsel for the applicants. There is in fact, a calculation sheet, which has been handed over during the hearing which forms part of the record. It indicates that out of the total amount of service charges of Rs. 9177949.00 for the period from May, 1980 to 30th June, 1984, Rs. 4028263.61 was credited to the head “transportation charges” for the period May 1980 to 31st December, 1982. Out of the total demand of Rs. 2211274.00 an amount of Rs. 970543.05 is also indicated.
4. There is BO doubt a mistake in that specific finding in the omission to indicate the admissibility or otherwise of this amount as a deduction. It is however, clear that the claim, that part of the amount of transportation charges, which have been found to be inadmissible has already been suffered duty, is not substantiated. There is no material on record to show that the amounts which were collected as handling charges or service charges, did during the period under consideration, constitute part of the assessee’s books of account as transport charges. This being the case, the contention that part of the transport charges was shown to be sales promotion expenses, does not require consideration.
5. There is, in fact, a contradiction between the claim now made in the application and the claim earlier made. In the claim earlier made, it was recorded by the Bench that the entire sums collected as handling charges prior to May, 1984 was credited as transport charges of which the amount credited from 1st April, 1983 to December, 1983 was subsequently credited to sales promotion expenses on which duty has been paid, since it was not claimed as a deduction. The claim now made in the application is that out of the total handling/service charges, applicants transferred, for the period 1.4.1983 to 31.12.1983 Rs. 5149685 to the head “for sales promotion expenses” and the balance of Rs. 4028264.00 to the head “for transport charges” and the duty paid on the transport charges has to be deducted. Such an argument, as pointed by the departmental representative, does not arise in the order at all. Therefore, to the extent that the Tribunal has failed to consider the arguments recorded in paragraph 6, we have suo motu made good the omission, pointing out that the claim is not substantiated and therefore, cannot be acceptable.
6. The second mistake that is alleged is mat, although the Tribunal has accepted some of the contentions of the assessee, which would result ultimately in the reduction of the duty payable by it, and as also consequently remand to the Commissioner for the determination of penalty to be imposable on it and its directors, it is silent as to the fine fixed for redemption of the assessee’s plant and machinery ordered to be confiscated under Rule 173Q of the Rules. That is clearly an omission. In order to deal with this we think it is appropriate to make an addition in paragraph 12 of the order that the Commissioner shall, after determining the quantum of the amount to be recoverable, decide in addition to the quantum of penalty imposable on the company and its managing director, also decide the quantum of fine for reduction of plant and machinery ordered to be confiscated.
7.The application thus allowed in part.
(Pronounced on 7-1-04)