2010 PLP (Trib (PTD)

HAFIZ AHSAAN AHMAD KHOKHAR, MEMBER (JUDICIAL).

(1). This appeal has been filed by Messrs Murree Brewery Company Limited, Rawalpindi (herein after called the appellants) against the Order-in-Appeal No.312/2008, dated 19-12-2008 passed by the Collector Customs, Sales Tax and Federal Excise (Appeals), RTO Office Building Islamabad (herein after called the respondents).

2. Brief facts of the case initiated against the appellants through the show-cause notice C.No.FE/Additional District Judge/DC/109/ 2007/468, dated 24-4-2007, issued with the signature Deputy Collector (Adjudication) Sales Tax and Federal Excise, Islamabad are that on account of audit Observation No.16, dated 22-11-2003, the appellants evaded the Central Excise duty amounting to Rs.10,71,913 during the year 2002-2003 as they cleared the aerated/non-aerated Beverages on payment of Central Excise duty on value less than the declared retail price. That resulted into short realization of Rs.10,71,913 which was the violation of section 3 of Central Excise Act, 1944, read with S.R.O. 333(I)/2002, dated 15-6-2002. The appellants, were further called upon to explain their position within 15 days of the receipt of the show-cause notice as to why they may not pay the evaded amount of Central Excise duty along with Additional duty and penalty under section 8 of the Federal Excise 'Act, 2005, recoverable under section 14(3) of the said Act.

3. The appellants submitted their reply on the show-cause notice but the same was not accepted by the adjudicating officer, who passed the Order-in-Original No.4/2008, dated 28-6-2008 against the appellants. The appellants, then filed an appeal against the Order-in-Original to the Collector (Appeals)/respondent No.1, however the appellants were not succeeded in obtaining a favouable decision, since the appellate Authority also maintained the Order-in-Original, and hold that the demand of adjudicating officer was lawful and justified vide Order-in-Appeal No.312/2008, dated 19-12-2008.

4. Being aggrieved from the Order-in-Appeal, passed by the respondent No.1, the appellants have preferred the present appeal against the said order before the Customs, Federal Excise and Sales Tax, Appellate Tribunal, 'Islamabad.

5. During the arguments on the appeal, both the representatives of appellants and respondents made as joint request for re-conciliation on the subject matter of the appeal, the same was allowed with the direction to submit the re-conciliation report within one month to the office of Assistant Registrar Bench-I, Islamabad. Thereafter, both the parties submitted the joint reconciliation report, wherein it was observed by the department that the Central Excise duty was already paid by the appellants on the declared price according to section 4(2) of the Central Excise Act, 1944 and the difference between the price shown in the price list and the declared price to the department by the unit is of chilling charges. The report was duly signed by the Deputy Collector Law and the Senior Auditors of the department. The relevant paragraphs of the joint re-conciliation report is being reproduced:-- "From the perusal of the record, the department observed that the Central Excise Duty was paid do the declared retail price @ 12% and 10% respectively whereas the detecting agency has taken two rates Rs.15 and Rs.25 respectively from the price list. The price list also show ** with rate. This symbol shows the price is for chilled products and that is for consumers and not the retail price declared for Central Excise Duty purposes. The difference between price shown in the price list and the declared price to the department by the unit is of chilling charges. After detailed discussion and examination of the record, it is observed that the Central Excise Duty was paid on the declared price according to S.4(2) of the Central Excise Act, 1944 which is in order."

6. The representative of appellants after having the reconciliation report in his favour filed a civil miscellaneous application to the Court with the prayer that in view of the acknowledgement of the respondents, the show-cause notice dated 24-4-2007 issued to the appellant be kindly vacated and the Order-in-Appeal be graciously set aside.

7. I have minutely examined the record of the appeal with the assistance of both the learned representative of the parties and particularly perused the reconciliation report. The report clearly reveals that the Central Excise duty has been properly paid by the appellant on Retail price, which means the department/respondent do not have any claim of tax or duty against the appellants, as the Central Excise duty was already paid on the declared price according to section 4(2) of the Central Excise and Salt Act, 1944.

8. Therefore, in view of the above, the appeal is accepted in terms of reconciliation report jointly submitted to the Court, the Order-in-Appeal passed by the Collector (Appeals) respondent's No.1 is hereby set aside, and the show-cause notice issued to the appellants therefore vacated. The appeal is disposed of accordingly with no order as to costs.

9. Announced.

10. All concerned be informed accordingly. C.M.A./10/Tax (Trib.) Order accordingly.