ORDER
K.K. Usha, J. (President)
1. Appellant M/s. Spectrum Paints Pvt. Ltd., Shahjahanpur is engaged in the manufacture of Textment Surface Coating Paints and Primers. Challenge in this appeal is against the order passed by Commissioner (Appeals) in Order-in-Appeal No. 403(KDT) C.E./JPR-I(214)/2001, dated 21-6-2001 dismissing the appeal filed by the appellant herein. The adjudicating authority by an order dated 27-10-99 had confirmed the demand against the appellant to the extent of Rs. 1,84,915/- under Section 11A of the Central Excise Act, 1944, interest on the demand under Section 11AA and penalty of Rs. 1,00,000/- imposed under Rule 173Q on the ground of evasion of duty by non-inclusion of handling charges in the assessable value. The Commissioner (Appeals) affirmed the order passed by the adjudicating authority.
2. The main contention raised in this appeal by the assessee is that the adjudicating authority as well as the Appellate Authority have entered a finding against the appellant which is beyond the scope of the show cause notice. The show cause notices alleged that assessee had charged Re. 1/- per Kg. extra as handling charges in the name of freight, cartage, local conveyance, insurance, loading and unloading etc. Being an additional consideration, it should form part of the assessable value. According to the appellant, the sale of the goods manufactured by it was at the factory gate. Therefore,
price was also charged at factory gate, In order to substantiate its contention, the appellant has referred to its pattern-of payment of sales tax under the Sales Act, Rajasthan at a higher rate than under the provisions of General Sales Act at Delhi if the sale had taken place at Delhi. The learned counsel for the appellant further pointed out that in the show cause notices there is no allegation of the appellant having a godown at Delhi and the sales taking, place from its godown at Delhi. On the other hand, as mentioned earlier, the allegation in the show cause notices was on the basis of additional consideration/ but the adjudicating authority as well as the Appellate Authority entered a finding that sale has taken place from the godown of the appellant at Delhi and therefore, the handling charges collected at the rate of Re. 1/- per kg. should form part of the assessable value.
3. The learned counsel took us through the show cause notices. We find that there is no reference to a godown of the appellant at Delhi or to a sale taking place from the godown at Delhi. It has to be noted that in the grounds of appeal before the Commissioner (Appeals) the appellant had taken a specific contention that it has no depot at Delhi and the goods are assigned to their customer directly from their Shahjahanpur factory. But this aspect was overlooked by the Commissioner (Appeals) also. The orders impugned have not proceeded on the basis of the allegation in the show cause notices that the amount of Re. 1/- per kg. collected by the appellant from its customers is in the nature of additional consideration. In view of the above, for the simple reason that the adjudicating authority as well as the appellate authority have proceeded on a basis which is not covered by the allegation in the show cause notice, the orders impugned are only to be set aside.
4. We set aside the orders impugned and allow the appeal.