ORDER
V.P. Gulati, Vice President
1. The issue in the appeal relates to demand of duty in respect of the amounts which are shown in the invoice against the heading charity. The learned lower authority has held that notwithstanding the decision of the Tribunal in the case of Mohan & Company v. CCE, Madras reported in 1987 (30) E.L.T. 624, this amount would be required to be reckoned for arriving at the assessable value.
2. The learned Representative has pleaded that this practice of collecting amount in the name of charity has been prevailing from 1984 and at no time the departmental authorities raised any objection in regard to that and no duty was also demanded in respect of these amounts. This amount has no bearing on the price of the goods and the charity amount is paid by all their customers voluntarily. Unless a nexus could be established between the sale price and the amount reflected as charity, the amount cannot be taken into reckoning for arriving at the assessable value.
3. At the time of the last hearing, the learned Counsel was asked as to whether this amount was paid voluntarily by their customers. He has filed some letters before us wherein it has been stated by some of the customers from whom they have obtained this letter that this amount was being paid voluntarily by them. He has clarified that the appellants do not have any written contract in regard to payment of these amounts as charity.
4. The learned DR has pleaded that the Coll. had distinguished the ratio of the decision of the Tribunal on the ground that the Tribunal had placed reliance on a decision of the Hon’ble Supreme Court in the case of CIT v. Bijli Cotton Mills reported in (1979) 116 ITR 60 and which decision did not have relevance from the central excise point of view. He however has pleaded that the letters produced by the appellants cannot be considered as substantive evidence and in case the appellant want to establish their plea that the amounts were paid voluntarily, they should have filed the affidavits in that record. The deptt. (sic.) should have thereafter proceeded to verify the veracity of these affidavits and filed a counter if felt necessary.
5. We have considered the pleas made by both sides. We observe that the the ratio of the Tribunal in the case of Mohan & Company cited supra covers the issue. However, the appellants plea would be acceptable only in the event of their establishing that the charity amount was paid voluntarily by their customers. The appellants have not produced any contract or the sales price lists in regard to the goods in question. The appellants plea would acquire credibility only in the event of affidavits being filed by the customers and also would require to be substantiated by the practice prevailing in the trade in regard to collection of the charity amounts as such. In our view, therefore, the appellants would be eligible to the amounts not being included for assessment purposes only in the event of their establishing that the payments are voluntarily paid by the customers, if there is a practice prevailing in the trade in regard to collection of this amount from the customers and also that the payment of charity has no bearing on the sale price of the goods. We in this view of the matter hold that the matter will have to be gone into afresh in the context of the decision cited supra and our observations above. We therefore set aside the order of the learned lower authority and remand the matter to the adjudicating authority for de nova adjudication after affording the appellants an opportunity of being heard in the light of the our above observations. The appeal is allowed by way of remand.