- (1.) By the impugned order [2005 (186) E.L.T. 117 (Tri.-Del.)], the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') has dismissed the appeal of the appellant herein on the ground that the appellant could not produce the evidence to prove the expenditure incurred under certain heads, viz., rent for duty paid godown, depreciation for bottles and quantity discount given in kind. The position that was taken by the assessee before the authorities was that these expenditures could be actually ascertained only afterwards and for this reason, even a request was made to the assessing officer for provisional assessment as the actual expenditure could not be communicated at the time of assessment having regard to the nature of such expenses. It is submitted that this vital aspect of the matter is glossed over by the CESTAT. It is also pointed out before us that in the next assessment year, i.e., assessment year 1995-1996, this very contention is accepted by the Commissioner when actual expenses were produced and benefit thereof has been extended to the assessee. Against the order of the Commissioner, a copy of which is handed over, the Department has gone in appeal and the said appeal is now pending before the CESTAT. In these circumstances, appropriate course of action would be to set aside the impugned order of the CESTAT which relates to assessment year 1994-1995 and remit the case back to CESTAT to decide the appeal of this year along with the appeal of assessment year 1995-1996 which is already pending before the it. It is ordered accordingly.
(2.) The appeal is disposed of accordingly. Final Result Disposed Off ;