Full Judgment Text
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CASE NO.:
Appeal (civil) 336 of 2001
PETITIONER:
Commissioner of Central Excise,Belgaum
RESPONDENT:
M/s Akay Cosmetics (P) Ltd
DATE OF JUDGMENT: 01/04/2005
BENCH:
S.N. VARIAVA, Dr. AR. LAKSHMANAN & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
KAPADIA, J.
This is an appeal filed by the revenue under section 35-L
(b) of the Central Excise Act, 1944 (for short "the 1944 Act")
against the decision of the Customs, Excise and Gold (Control)
Appellate Tribunal, Chennai (hereinafter referred to as "the
tribunal") dated 28.2.2000 in Appeal Nos.E/Stat/77/2000 and
E/122/2000, remanding the matter to the Commissioner
(Appeals).
M/s Akay Cosmetics (P) Ltd. (assessee herein) was the
manufacturer of instant hair colour sold under the brand name
"Bigen" falling under chapter sub-heading 3305.90 of the
schedule to the Central Excise Tariff Act, 1985. They were
selling their entire production to M/s Nemaru Coiffure (for
short "M/s Nemaru"). There was a dispute on the valuation of
goods for the period 1/88 to 3/93. The assessee had claimed
deduction from the assessable value in respect of seven items of
expenditure, namely, secondary packing, turnover tax, freight,
insurance, octroi, handling charges and cost of bought-out
items.
By judgment and order dated 6.1.2000, the tribunal set
aside the demand for differential duty raised by the department
for the period 1/88 to 8/88 for want of show-cause notice. By
the said judgment, the tribunal allowed the assessees’ appeal
claiming deduction for the aforestated seven items of
expenditure for the period 9/88 to 3/91. However, in view of
the change in organizational set-up under agreement dated
2.1.1991, the tribunal remanded the matter to the Commissioner
(Appeals) to reconsider the question of "related person" under
section 4(4)(c) of the said Act for the period 4/91 to 3/93.
Aggrieved by the decision of the tribunal dated 6.1.2000,
the department came to this Court by way of civil appeal under
section 35-L(b) of the Act.
By judgment delivered by this Court today in the case of
Commissioner of Central Excise, Belgaum v. M/s Akay
Cosmetics Pvt. Ltd. [Civil Appeal Nos.3792-3803 of 2000], this
Court has partly allowed the department’s appeal. However,
the order of remand on the question of "related person" during
the period 4/91 to 3/93 has been upheld.
In the present appeal, 11 show-cause notices were issued
by the department calling upon the assessee as to why the
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deduction in respect of the above seven items should not be
disallowed for the period 4/93 to 6/97. Since the question of
"related person" had been remanded to Commissioner
(Appeals) by the tribunal under its earlier order dated 6.1.2000,
the dispute on the same point of "related person" for the period
4/93 to 6/97 was also required to be remanded to the
Commissioner (Appeals). In the circumstances, we do not find
any infirmity in the impugned judgment.
Before concluding, we may point out that in the case of
Commissioner of Central Excise, Belgaum v. Akay Cosmetics
(P) Limited reported in 2004 (167) ELT 253(T), it has been
held that on and after 1.4.1991, the two entities, namely M/s
Akay Cosmetics (P) Ltd. and M/s Nemaru were not related
persons.
For the aforestated reasons, there is no merit in this civil
appeal and the same is accordingly dismissed, with no order as
to costs.