ORDER
S.L. Peeran, Member (J)
1. The Revenue has filed this appeal against the Order-in-Appeal No. 146/2004 dated 29.6.2004 by which the Commissioner (Appeals) has held that the assessee had not received any extra amount towards freight and it is not required to be added in the assessable value. He also noted that in the absence of any supporting evidence, it would be difficult to hold that there is a flow back of the part of the freight amounts to the assessee. With regard to the claim of deduction on damages of the goods which had left the depot premises, the Commissioner (Appeals) has not granted abatement and directed to the assessee to pay duty. Further demand for larger period has been set aside as the assessee has not suppressed any facts as all the facts were within the knowledge of the Department and the assessments were provisional. Para 44 of the show cause notice relates to mis-declaration as the assessee had produced false affidavits obtained from their RDSs to substantiate their claim on damages and produced certificates from Chartered Accountant/Cost Accountant based on inflated freight bills obtained from C&FAs. The Commissioner had taken explanation of the assessee with regard to the practice prevalent in the various units of the factories at Gujarat and elsewhere and asked to produce evidence. Similar show cause notices were issued by Director General Of Anti Evasion to the assessee on the same grounds and after a due consideration and verification of the entire records, the Commissioner has dropped the proceedings vide Order-in-Original No. 4/M/1/2003 dated 28.3.2003.
2. The Revenue in their Grounds of Appeal are contending that the wholesalers and C&F Agent had disclosed the receipt of equalized freight in their statements. It is also submitted that the exact nature of the discount and the fact that it was for damages occurring subsequent to clearance from the depot was not made known to the Department. Hence there is suppression of facts. The learned DR submits that the grounds made out are sufficient to uphold the charge of suppression of facts pertaining to claim of deductions and damages of goods in transit. In so far as the extra amount received as freight charges, he re-iterated the grounds of appeal.
3. The learned Counsel points out the findings given by the Commissioner (Appeals). He submits that the Commissioner (Appeals) in Para 8 of the order has noted that the case pertaining to excess freight charges was based on the sole statement of one K.I. Samuel, C&F Agent. However, in the cross examination, he has denied that the excess freight amounts received by him. The learned Counsel submits that the issue is covered by the Supreme Court judgment rendered in the case of Baroda Electric Meters . He files copy of large number of judgments in support of the points mentioned in the written submissions.
4. The learned Counsel submits that in so far as the claim of deductions on damages of the goods in transit is concerned, the fact was well known to the Department and there was no suppression facts or filing false affidavit or giving incorrect certificates of Chartered Accountant/Cost Accountant. The learned Counsel submits that the findings of the Commissioner (Appeals) pertaining to time bar is just and proper.
5. On a careful consideration of the submissions made by both the sides, we notice that the appellants had entered into contract with the C&F Agents. They have not received any excess payment. Shri K.I. Samuel, C&F Agent, during cross examination has denied that the excess freight amounts received by him. The Commissioner has examined in detail the practice of fixing transport charges and has come to the conclusion that the assessee has not received any extra benefit for the transport charges/freight charges. The issue is also covered by the Supreme Court judgment rendered in the case of Baroda Electric Meters . Therefore granting relief on this point by the Commissioner is just and proper. So far as the time bar and dropping of demand for larger period in respect of the damages of goods in transit, the Commissioner has noted that the Revenue has not produced any supporting evidence to substantiate the allegation. The Commissioner (Appeals) has also noted that the assessments were provisional and all the facts were known to the Department. We find that the Revenue has not elaborate the grounds of suppression of facts. The show cause notice refers to false affidavits and incorrect certificates of the Chartered Accountant/Cost Accountant, but the same has not been elaborated and no ground has been taken in the Grounds of Appeal. We are satisfied with the reasoning of the Commissioner (Appeals) in dropping of demand for the longer period. There is no infirmity in the impugned order. Hence the Revenue’s appeal is rejected.
(Pronounced and dictated in the open court)