- (1.) These appeals are under S. 35l (b) of the central Excises and Salt Act, 1944 against a common order dated 4/9/1990 made by the Customs, Excise and Gold (Control) Appellate tribunal, New Delhi in a bunch of appeals arising out of the order dated 22/12/1989 passed by the Collector of central Excise (Appeals) , New Delhi. Common questions are involved in these appeals.
(2.) The tribunal by the impugned order came to the conclusion that it was bound by an earlier decision of the tribunal and, therefore, the controversy in these appeals was not open for a fresh consideration by the tribunal. The tribunal had indicated that it was barred from examining the case on merits on the principle of res judicata, and judicial propriety. For this reason the tribunal did not examine the facts on which the point of law involved was raised for determination. The appeals were dismissed for this reason alone. However, while dismissing the appeals the tribunal at the end observed as follows: "True, the learned Advocate advanced some important arguments while submitting that they had a factory gate sale and in the light of the Supreme court's judgment in Indian Oxygen, such sale price had to form the basis of assessment. We also take note of his pica that these appellants are the only factory in the country who pay excise duty in retail basis. We have got verified the correctness of these submissions but if this is true (which can be verified) , it must be said that the appellants have a very goods case at least to begin with. However, these circumstances cannot result in our ignoring the earlier judgment for the simple reason that the said judgment was based at the same facts and it would not be judicial propriety for us to sit over judgment and in effect to review it. "
(3.) Learned counsel for the respondents, in all fairness, did not attempt to support the impugned order on the only ground on which the tribunal dismissed the appeals before it. It is not disputed before us that the findings on the disputed facts between the parties recorded by the Assistant Collector and on appeal by the Collector are at variance. The controversy arose as a result of appellants' claim for deduction of Rs. 5,000. 00 from the retail selling price as mentioned in Part-V of the Price List. According to the appellants this deduction has to be made for determination of the wholesale cash price which is material for computing the excise duty. It may be mentioned, as appears from the orders made by the Assistant Collector and the Collector that the appellants' case with regard to the nature of the sum of Rs. 5,000. 00 claimed as deduction was not consistent as observed by those authorities. On behalf of the respondent, it was contended that no such deduction was permissible at all. In view of this dispute between the parties, the nature of this amount of Rs. 5,000. 00 claimed as deduction, by the appellant and the justification for the deduction of that amount or any part thereof was a matter in controversy between the parlies. The Assistant Collector in his order observed as under:- "I observe that the party has claimed deduction of Rs. 5,000. 00 from the selling prices mentioned in Part-V price lists. These deductions as per the party account for the difference between the wholesale and retail prices. In this connection, I observe that the amount of Rs. 5,000. 00 is charged from the buyer, on account of three free after sale services and the dealer's commission. ";