Commissioner of Central Excise Vs. Hcl Office Automation

Commissioner of Central Excise vs Hcl Office Automation

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided May 19, 2003

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Citation: sooperkanoon.com/30934
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: K Usha, N T C.N.B.
Decided On: May 19, 2003
Subject: MRTP

Case Summary

AI-generated summary - not the official court judgment text.

MRTP

Key legal issue: MRTP

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Hcl Office Automation

Legal References

Reported In: (2003)(156)ELT937TriDel

Excerpt

.....was also placed on circular issued by c.b.e.c. dated 8-8-75 directing that in determining the amount of deduction or for specifying the percentage, regard shall be had to the nature of excisable goods, the trade practice in that commodity and other relevant factors.certificate issued by the chartered accountant that the retailing expenses would be 20% of the retail price was also relied upon. on the other hand it was contended by the department that only 50% of the marketing expenses can be allowed as the retailing expenses. the commissioner (appeals) accepted the contention raised by the assessee and took the view that 20% of the retailing expenses is justified. it is against the above order, the revenue has come up in appeal.4. the main contention taken in the grounds of appeal is that the commissioner (appeals) committed an error in granting retailing expenses at 20% when the assessee had claimed only 12.72% to 15% at the initial stage. it is also contended that the adjudicating authority had correctly calculated the retailing expenses at 8.5%.5. we have heard id. dr for the appellant and id. counsel for the respondent.6. we do not find any merit in the contention raised by the revenue.circular dated 8-8-75 issued by c.b.e.c. is binding on the department.going by the above circular, the trade practice in the particular commodity is a relevant factor. relying on the trade practice, the assessee claimed at 20%. it had pointed out that in the case of modi xerox, hon'ble supreme court had allowed 28% as retailing expenses. the certificate issued by the chartered accountant that the retailing expenses would come to 20% of the retail price cannot be brushed aside.in the above circumstances, the commissioner (appeals) was fully justified in fixing the retailing expenses at 20% of the retail price.we find no reason to interfere with the finding of the commissioner (appeals). the appeal filed by the revenue, therefore, stands dismissed.

Full Judgment

1. This is an appeal at the instance of the Revenue challenging the order passed by Commissioner (Appeals) dated 5-5-2002.

2. The issue raised herein relates to the claim of the respondent/assessee for deduction of retailing expenses. Pursuant to an order passed by this Tribunal dated 18-3-99, this issue was examined by the adjudicating authority and by order dated 31-3-01, it was held that the respondents are entitled to retailing expenses only to the extent of 8.5%. The above order was challenged before the Commissioner (Appeals) by the assessee.

3. The assessee had contended that it is entitled to claim retailing expenses at 20% of the retail price. In support of the above contention the assessee placed reliance on the decision of the Hon'ble Supreme Court in the case of Modi Xerox relating to same type of goods namely photocopy machines where 28% had been allowed as retailing expenses.

Reliance was also placed on circular issued by C.B.E.C. dated 8-8-75 directing that in determining the amount of deduction or for specifying the percentage, regard shall be had to the nature of excisable goods, the trade practice in that commodity and other relevant factors.

Certificate issued by the Chartered Accountant that the retailing expenses would be 20% of the retail price was also relied upon. On the other hand it was contended by the Department that only 50% of the marketing expenses can be allowed as the retailing expenses. The Commissioner (Appeals) accepted the contention raised by the assessee and took the view that 20% of the retailing expenses is justified. It is against the above order, the Revenue has come up in appeal.

4. The main contention taken in the Grounds of Appeal is that the Commissioner (Appeals) committed an error in granting retailing expenses at 20% when the assessee had claimed only 12.72% to 15% at the initial stage. It is also contended that the adjudicating authority had correctly calculated the retailing expenses at 8.5%.

5. We have heard Id. DR for the appellant and Id. Counsel for the respondent.

6. We do not find any merit in the contention raised by the Revenue.

Circular dated 8-8-75 issued by C.B.E.C. is binding on the Department.

Going by the above circular, the trade practice in the particular commodity is a relevant factor. Relying on the trade practice, the assessee claimed at 20%. It had pointed out that in the case of Modi Xerox, Hon'ble Supreme Court had allowed 28% as retailing expenses. The certificate issued by the Chartered Accountant that the retailing expenses would come to 20% of the retail price cannot be brushed aside.

In the above circumstances, the Commissioner (Appeals) was fully justified in fixing the retailing expenses at 20% of the retail price.

We find no reason to interfere with the finding of the Commissioner (Appeals). The appeal filed by the Revenue, therefore, stands dismissed.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties Commissioner of Central Excise vs Hcl Office Automation Same Subject MRTP Same Judge K Usha, N T C.N.B.