Kapadia, J. - (1.)This is an appeal under Section 35-L(b) of the Central Excise Act, 1944 (for short "the said Act").
(2.)M/s. Apex Traders, Sahibadad (hereinafter referred to as "the assessee") were engaged in the manufacture of aerated waters of brands, namely, Thumps Up, Limca and Gold Spot in the pack sizes of 500 ml. and 1000 ml. falling under Chapter 22 of the schedule to the Central Excise Tariff Act, 1985. The assessee filed its price-list in part-I effective from 1-3-1994 in respect of 1000 ml. and 500 ml. glass bottle packs of durable and returnable nature. They also filed the price-list in part-I effective from 1-3-1994 in respect of plastic bottled packs of 1000 ml. of non-returnable nature of brands, namely. Thums Up, Limca and Gold Spot. The assessee claimed deduction from the wholesale trade price on account of freight and rent on containers (ROC). By Finance Act, 1994, the Central Excise Rules were amended and the practice of filing of price-list was abolished. Therefore, the assessee filed a declaration of assessable value under Rule 173-C of the Central Excise Rules, 1944 in respect of aforestated brands of aerated water effective from 1-4-1994. In this declaration, the assessee claimed deduction from depot sale price on account of equalized freight and on account of durable and returnable containers i.e. glass bottle packing of 1000 ml. and 500 ml. of the aforestated brands of aerated water.
(3.)The department found that the abatement claimed on account of freight in the price declaration was on the higher side as compared to what was claimed in the price list submitted in March, 1994. Hence, the Assistant Commissioner ordered provisional assessment of the aforestated price-declaration filed by the assessee. Ultimately, the Assistant Commissioner finalized the provisional assessment vide order dated 26-5-1998. The Assistant Commissioner found that in the case of Coolade Beverages Ltd., Sahibadad, the Commissioner of Central Excise, Meerut vide his order dated 17-6-1997 had held that ROC did not form part of the assessable value and, therefore, relying on the order of the Commissioner dated 17-6-1997, the Assistant Commissioner in the present case concluded that the ROC was an admissible abatement from the sale price. Accordingly, the abatement claimed by the assessee herein from sale price on account of ROC effective from 1-4-1994 was allowed. At this stage, we may clarify that the order of the Commissioner dated 17-6-1997 was the subject-matter of Civil Appeal No. 772 of 2001 preferred by the department which appeal has been dismissed by this Court vide judgment of even date.