LexCOMMISSIONER OF CENTRAL EXCISE, GHAZIABAD versus M/S. APEX TRADERS, SAHIBABAD
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COMMISSIONER OF CENTRAL EXCISE, GHAZIABAD A v. MIS. APEX TRADERS, SAHIBABAD JULY 27, 2005 [B.P. SINGH AND S.H. KAPADIA, JJ.] B Central Excise Rules, 1944: r.173-C-Assessable value-Deduction claimed on account of equalized freight and Rent on Containers (ROC)-Claim regarding. quantum of C deduction-Duty of assessee to produce relevant records-Held, when it comes to the question of quantum, the duty is on the assessee claiming deduction to provide requisite data to justify the quantum of deduction- Since the assessee has not produced the requisite material, the case is remitted to Assistant Commissioner to decide quantum of deduction from sale D price in whole sale trade on ac__count of freight and ROC-Central Excise Tariff Act, 1985-Schedule-Chapter 22. Respondent-assessee, a manufacturer of aerated water, namely, Thu ms Up, Limca and Gold Spot falling under Chapter 22 of the Schedule to the Central Excise Tariff Act 1985, filed a declaration of assessable value under E Rule 173-C of the Central Excise Rules, 1944 in respect of these brands and claimed deduction on account of equalized freight and Rent on Containers (ROC), namely, i.e. 1000 mt ,and 500 ml. glass bottle packs. The Assistant Commissioner allowed the claim on accou-nt of ROC but as regards the equalized freight,·he'held that shlce the'assessee soJJj the goods partly at the factory gate and partly from the depot at the same price~ the price charged by F the assessee at the factory gate should be treated as the assessable value. Appeal of the Revenue was allowed by the Commissioner (Appeals), but, on further appeal by the assessee, the Tribunal restored the decision of the Assistant Commissioner. Aggr~eved, the Revenue filed the present appeal. Allowing the appeal, the Court HELD: 1..1. In the instant case, the controversy is with regard to the quantum of abatement/deduction claimed by the assessee on account of equalized freight and on account of ROC. When it comes to the question of G 829 II 830 SUPREME COURT REPORTS [2005] SUPP. I S.C.R. A quantum, the duty is on the assessee claiming deduction to provide requisite data and certificates from Chartered Accountant as well as books of accounts to justify the quantum of deduction. [832-F] 1.2. On the item of deduction for ROC, the assessee has not produced the requisite data indicating the basis on which ROC is computed. There is B nothing to indicate either as to when ROC became chargeable or the rate at which ROC was chargeable; nor is there anything to indicate whether the amount of ROC was at all reflected in the invoices. Besides, the goods were partly sold at the factory gate and partly from the depot. The assessee has not led evidence to justify the extent of the claim for deduction on account of actual C freight. The Assistant Commissioner has failed to quantify, by actual facts and figures, the actual extent of the freight allowable as deduction. In the circumstances, the matter is remitted to the Assistant Commissioner to decide the quantum of deduction/abatement from the sale price in wholesale trade on account of freight and ROC, in accordance with law. (832-G; 833-A, B, C] D Collector of Central Excise v. Indian Oxygen Ltd., (1988) 36 ELT 730, referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 192 of2004. From the Judgment and Order dated 21.8.2003 of the Central Excise, E Customs and Service Tax Appellate Tribunal, New Delhi in F.O.No. 434/2003- NB(A) in A.No. E/1040/2003-NB(A). Rajiv Dutta, Additional Solicitor General, T.A. Khan, Ms. Shalini Kumar, Ravinder Aggarwal and P. Parmeswaran with him for the Appellant. F Dushyant Dave, Maninder Singh, Pratibha M. Singh, Abhinav Mukherji, Mis. Aruptham Aruna & Co., with him for the Respondent. The Judgment of the Court was delivered by KAPADIA, J. This is an appeal under section 35-L (b) of the Central G Excise Act, 1944 (for short "the said Act"). Mis Apex Traders, Sahibabad (hereinafter referred to as "the assessee") were engaged in the manufacture of aerated waters of brands, namely, Thums Up, Limca and Gold Spot in the pack sizes of 500 ml. and 1000 ml. falling under Chapter 22 of the Schedule to the Central Excise Tariff Act, 1985. The assessee H filed its price-list in part-I effective from 1.3.1994 in respect of 1000 ml. and C.C.E. v. APEX TRADERS, SAHIBABAD [KAPADIA, J.] 831 500 ml. glass bottle packs of durable and returnable nature. They also filed A the pr
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