Judgment:
1. The present appeal is directed against the Order-in-Original No.35/2004, dated 30-9-2004 passed by the Commissioner of Central Excise, Delhi-I. This order was passed by the Commissioner in the de novo proceedings as ordered by the Tribunal under Final Order No. 374/2002-A and Misc. Order No. 63/02-A, dated 8-8-2002.
2. The appellants are engaged in the manufacture of aerated waters.
They were removing the goods from their factory to an adjacent godown and distributing the goods from there. There was no sale at the factory gate. The entire stock of soft drinks was transferred from their factory to their adjoining duty paid godown with the help of a conveyor belt, on payment of duty. Thereafter, the sales to the dealers/customers were effected from their godown at a higher price.
The appellants filed price list under Rule 173C of Central Excise Rules, 1944 w.e.f 3-3-1994 and claimed various deductions from the wholesale price for arriving at assessable value. On investigation by DGAE, it was found that certain deductions claimed from the wholesale price were not permissible and accordingly, the show cause notice was issued to the appellants demanding central excise duty on such deductions which were not permissible. The case was adjudicated under Order-in-original No. 13/2000, dated 21-6-2000 by the Commissioner, who confirmed duty and imposed penalty on the appellants. On appeal, the Tribunal under Order No. 113/2001-A, dated 2-3-2001 - 2002 (150) E.L.T.661 (Tri.)] and Misc. Order No. 50/2001-A, dated 20-8-2001 [2001 (133) E.L.T. 79 (Tri.)] remanded the case with certain observations. The Commissioner again under Order-in-original No. 44/2001, dated 28-11-2001 re-confirmed the duty and imposed penalty. The appellants referred the appeal before the CEGAT, which again remanded the case under Order No. 374/2002-A and Misc. Order No. 63/2002-A, dated 8-8-2002. The remand was only to examine afresh the following four issues :- Under the impugned order, the Commissioner rejected the deductions claimed in respect of the above said items.
3. Shri Rangaswamy, Advocate pleaded that he is not contesting the order of the Commissioner with regard to expenditure in receiving the bottles. He is only contesting the findings of the Commissioner on three issues viz. rent for duty-paid godown, depreciation for bottles and discount given in kind. He pleaded that the duty-paid godown is part of the factory. Hence, expenditure shown as rent of the godown and added by the lower authorities, for determining the assessable value, should not be added in the permissible deductions. He however, could not produce any evidence that the rent paid for the factory includes the rent of the duty-paid godown and duty paid godown is part of the factory. Regarding deprecation for bottles, he pleaded that the Commissioner has taken the figures for the years 1993-94 instead of taking the figures for the years 1994-95. Regarding quantity discount given in kind, he referred to a pamphlet said to be issued by appellants regarding a scheme under which they were providing one or two bottles free with one crate and he showed one pamphlet placed at page 537 of the paper book.
4. Ld. Advocate also pleaded that when there were prices available in the market for other manufacturers, their prices should have been taken on the basis of those prices of other manufacturers for levy of excise duty. He also referred to the Tribunal's decision in case of CCE v.Moon Beverages 5. Shri R.C. Sankhla, ld. SDR appearing for the Revenue pleaded that the Commissioner has given clear finding that rent of duty paid godown was not included in the rent of the factory premises. In view of this clear finding of the Commissioner, the claim of the appellants that this rent should not be added for arriving at the permissible deduction should not be accepted. He also referred to the statement of Shri R.L.
Gupta, Accountant of M/s. A.S. Sachdeva & Sons, who clearly stated that the lessor had not charged any rent from the appellants for the duty-paid godown. Regarding depreciation for bottles, he pleaded that the show cause notice was issued on 28-7-1995 and at that time, the appellants could not give the figures of depreciation for the years 1994-95 as their balance sheet was not prepared. Subsequently, during proceeding, they never submitted the figures for the years 1994-95 for claiming any benefit. Therefore, the department had to proceed on the figures for the years 1993-1994 which was furnished by the appellants to the department. Regarding quantity discount, he pleaded that the pamphlet on the basis of which the appellants are claiming that they had made the discount known is undated and it appears to be for general public. For claiming deduction on account of discount, the scheme for discount has to be made known to all the dealers in advance and only then the deduction can be allowed. Since the appellants have failed to produce any evidence that they had made known the scheme for allowing quantity discount in advance, therefore, the Commissioner has rightly disallowed the quantity discount to the appellants.
6. Regarding the other pleadings made by the ld. Advocate of the appellants, he stated that since the case was remanded back to the Commissioner was only limited to examination of four issues to be examined for arriving at the assessable value, therefore, the arguments can only be limited up to that and not beyond this by raising fresh points.
8. We find that the appellants were clearing the aerated water manufactured in their factory to the duty-paid godown through a conveyor belt and then selling these goods from there to dealers. Since no wholesale price was available, at the factory gate, the appellants had filed the wholesale price on which the goods were sold to the dealers and claimed deductions from them for arriving at the assessable value. The department has found that several deductions claimed by the appellants were not allowable. Finally, the dispute remained in respect of four items discussed above. The Commissioner has passed the order in respect of each of those items and the appellants are not contesting the finding of the Commissioner for disallowing the deduction due to expenditure in receiving the bottles. They have only contested the three issues (i) They claimed that the rent paid for the factory includes the rent paid for the godown. Therefore, addition of Rs. 84,434/- as rent for the godown in the total deductions will amount to taxing this amount two times. We find that the appellants had not produced any evidence before us that the rent of duty-paid godown was included in the rent of the factory premises. We find that this finding is given by the Commissioner after verifying the facts. He has given a finding that an area of 6560 sq. yard (59,500 sq. feet) was taken on rent for the factory. The area of the duty-paid godown is 13,000 sq.
feet. Therefore, he has worked out the proportionate rent for this area. The maintenance cost of duty paid godown including its rent is not a permissible deduction from the sale price to arrive at the assessable value. Therefore, Commissioner has correctly disallowed deduction on account of rent of duty paid godown. (ii) Regarding includibility of depreciation for bottles, the Commissioner has given the finding that the appellants have failed to produce the figures for the years 1994-95 at any stage. If appellants had to claim any deduction for arriving at the assessable value then it is for them to provide the figures. Since they have failed to produce the figures, therefore, the department has no other way but to go by those figures, which were provided by them and allowed that deduction, (iii) Regarding quantity discount, we find that the appellants have failed to produce any evidence before us that they had given quantity discount to the dealers and such discount was made known to the dealers in advance. The pamphlet placed in the paper book does not show any date, year or period nor it is addressed to anybody. Therefore, it cannot be a valid evidence for claiming any deduction from the price to arrive at assessable value. The appellants have failed to show any invoice, price list/declaration or any other valid evidence to establish that they, had given any quantity discount.
10. We find that during the arguments, ld. Advocate has raised certain issues like determining the value on the basis of market price of other manufacturers, etc., but we find that since these are not relevant to the present case, as the Tribunal had only remanded the case to determine certain issues and which have been determined by the Commissioner, therefore, we are not inclined to give any finding on any extraneous issues. Accordingly, we reject the appeal and uphold the order of the Commissioner.