Full Judgment
1. We have heard Shri T. Chandran, Advocate for the Appellant. We have first heard him for limitation. The advocate submits that appeal is filed within limitation. As such, condonation of delayed application is not necessary. He submits that the day on which the assessee received the copy of the order has to be excluded in recognition of the last date on which the appeal is required to be filed. In view of that appeal is within limitation. JDR agrees that there is no delay in filing the Appeal. In view of above we decide that the appeal is filed within the limitation. As regard the Stay Application, the advocate submits the judgment of the Hon'ble Supreme Court in the case of VIP Industries Ltd. v. Commr. of Cus. & C. Ex. Aurangabad 2003 (155) ELT 8 (SC) wherein it has been decided by the Hon'ble Supreme Court that "Cost of transportation from the factory to the depot is not includible in assessable value where a manufacturer included equalized freight in the price of the goods and sells the goods all over the country at a uniform price - Amendments of Section 4 of Central Excise Act, 1944 have made no difference to earlier position as settled by the Court." He further submits that it has been held by this Tribunal in their judgment in Nalco Chemicals India Ltd. v. Comm. of C.Ex. Calcutta - II reported in 1998 (104) ELT 730 Tribunal that : Non-uniformity of discount is not to be made basis for disallowing deduction from assessable value-Average discount arrived at on the basis of actual discount, would be equal to the quantum of the discount actually given by the appellant firm to their customers -section 4 of Central Excise Act, 1944. " He submits that his case is squarely covered by above decision. The advocate the Department's demand on the discount for damage.
2. Shri Madhiam, Learned JDR submits that the Section 4 has been amended and as per the amendment of Section 4, the cost of transportation from Depot has to be included. He further submits that the assessee sells their goods to Hindusthan Liver and as such, the Hon'ble Supreme Court's judgment quoted in VIP Industries will not be applicable.
3. After hearing both the sides, e dispense with the pre-deposit. We remand the case to the original Adjudicating Authority to consider the judgments cited by the appellants. He will pass the order after observing the principle of natural justice and after hearing both the parties and taking into consideration their submissions.