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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.