ORDER
Jyoti Balasundaram, Vice-President
1. The applications for rectification of mistake arise out of Tribunal’s Order Nos. A/325-327/WZB/2005-C-I, dated 8-4-2005, by which deductions claimed by the applicants herein from the wholesale price of goods cleared by them from their three factories, on account of post-removal expenses viz. Commission to agents, bank charges and freight and insurance charges in order to arrive at the assessable value of goods for purpose of assessment to duty were disallowed (the deduction on account of bonus to dealers was allowed on actual and penalties were reduced by the Tribunal).
2. According to the applicants, the errors apparent from the face of the record arose in not considering the following :-
(a) the submissions that decision dated 9-1-97 of the Apex Court dismissing the appeal filed by the Revenue against the Bombay High Court judgment dated 19-7-91 by which abatement towards agency commission was allowed in their own case operates res judicata even it was based upon a concession and would be binding upon the Excise authorities for the period in question in the present case also;
(b) the claim of the applicants to deduction of expenses paid to Bank less recoverable from customers;
(c) the claim of the applicants that freight charges incurred for transporting goods from their factory gate to transporter’s godown (from where the goods were further transported to the customer’s premises) were not required to be included in the assessable value of their goods; and
(d) submissions made that demands raised were partly barred by limitation.
3. We have heard both sides. We find that the issue of res judicata has been specifically considered and rejected as seen from paragraphs 5, 6 & 7 of Tribunal’s final order. In these paragraphs, the Tribunal dealt with the Bombay High Court judgment in the applicants’ case in Writ Petition No. 352/1983 . In paragraph 7, the Tribunal has dealt with the dismissal of the appeal of the Revenue against the Bombay High Court judgment by the Hon’ble Supreme Court. Therefore, no mistake arises on account of the first issue raised by the applicants in these applications. The Tribunal has also recorded a clear finding that bank charges and interest, freight & insurance expenses cannot be deducted from the assessable value in view of the clear terms and conditions in the sales policy that no bank charges are payable by them and the same are on buyers’ account and also noting that prices were Ex-Works Free On Road and transportation charges are on account of buyers’ as per Sales Policy. The Tribunal also noted that the applicants have not produced any evidence to the effect that their prices included bank charges. Therefore, on the 2nd and 3rd issues raised in these applications, there is no error in the final order. On these three issues, the applicants actually seek to re-argue the appeals, which is not permissible and which is beyond the scope of ROM, in the light of the Apex Court judgment in the case of Dwarka Pesant, AIR 1999 SC 1037 and in the case of CCE, Calcutta v. A.S.C.U Ltd. wherein it has been held that only a glaring mistake can be said to be one apparent from the face of the record and that mistake is not to be gleaned after long run out arguments.
4. We however, see force in the applicants’ submission that the pleas raised by them on time-bar have not been considered. We, therefore, agree that an error apparent from record arose for non consideration of the arguments on limitation.
5. We now proceed to hear both sides on this issue. We find that the Sales Policy and sales agreement which have been relied upon by the authorities below to raise demands by disallowing deductions claimed by the assessees were filed with the department in 1997 itself. Therefore, it was incumbent upon the Excise Authorities to raise demands within the normal period of limitation by inclusion of such expenses in the assessable value of the goods manufactured and cleared by the applicants during the period, which is June, 97 to December, 1999 and the applicants cannot be held guilty of suppression of misstatement of facts with intention to evade payment of duty so as to apply the extended period of limitation against them. We, therefore, hold that the duty demand confirmed against the applicants’ Chhindwara factory in the Commissioner’s order giving rise to Appeal No. 2449/99, wherein the demand notice was issued on 19-11-98 for the period June, 1997 to September, 1998 is sustainable only within the normal period of limitation and the demand confirmed against the Thane factory by the Commissioner’s order which is the subject matter of Appeal No. E/3850/2001 wherein the notice of demand was issued on 12-6-2000 for the period June, 1997 to December, 1999 is sustainable only within the normal period of limitation. The demand in Appeal No. E/43/2002 for the Thane factory is entirely within the period of six months period of limitation and therefore, the argument on time-bar is irrelevant for this appeal. We set aside the levy of interest under Section 11AB and imposition of penalty under Section 11 AC in Appeal No. 2449/99 and Appeal No. E/3850/2001 as a result of our finding on time-bar. The demands in these two cases are to be re-computed. We also set aside the denial of deemed credit of Rs. 77,23,778/- in Appeal No. E/43/2002 [Deemed Credit has been denied as per para 7 of Notification 29/96-C.E., dated 3-9-96 which states that “the provisions of the Notification shall not apply to final product on which excise duty leviable under Central Excise Act or Additional Duty leviable under Additional Duties of Excise (Goods of Special Importance) Act, 1957 has not been levied…by reason of fraud and collusion or any willful statement or suppression of facts or contravention…with intent to evade duty].”
6. ROM applications are thus partly allowed as above.