Written Submissions - Cylinder - 13th Sep 06

V inay Kumar Shr af f FCA, AICWA, ACS, DISA(ICAI), Adv. Dip. in Mgt. Acctg. (CIMA- London) 52 Weston Street 5th Floor KOLKATA – 700 012 PHONE: 22259194 (O), 98300 61359 (M) e-mail: [email protected]

Commissioner (Appeals - I), Central Excise, 4 Kiran Shankar Roy Road, Raja Chamber, 3rd Floor Kolkata – 700 001

20th June, 2005

Sir, Sub: Submissions with respect to Appeal filed by my client Creative Polypack Ltd. against Order No. SCDN (3) 77/HWD-I/06 dated 6th March, 2006 1) For that the order Learned Assistant Commissioner of Central Excise, Howrah West , Division - I is an non speaking order in as much as no reason have been given in the finding for dismissing the submissions made at the time of personal hearing and as such order should be dismissed. 2) For that the learned Assistant Commissioner of Central Excise, Howrah West , Division - I has failed to appreciate the fact that Rs. 3,01,075/- received towards charges for cylinder making and developing from Hindustan Lever Limited are in the nature of liquidated damages and not towards any supplies made to HLL. The fact of the case is that HLL had initially proposed to place an order for supply of goods for which the said cylinder was required. For proposed manufacture of said goods, the appellant incurred cylinder making and developing charges aggregating to Rs. 3,01,075/-. M/s HLL however, ultimately decided not to place any order for the said goods and consequently, the aforesaid expenses incurred by appellant in relation to the proposed contract were compensated to them. The aforesaid factual position was clearly evident from the Debit Note itself. We submit that by no stretch of imagination the said Debit Notes can be treated as additional consideration. Cost of

V inay Kumar Shr af f FCA, AICWA, ACS, DISA(ICAI), Adv. Dip. in Mgt. Acctg. (CIMA- London) 52 Weston Street 5th Floor KOLKATA – 700 012 PHONE: 22259194 (O), 98300 61359 (M) e-mail: [email protected]

cylinders was our purchase price paid to the supplier of the cylinders. This was an outgoing from our pocket. On the other hand, the Debit Notes were raised on our buyers for canceling the order due to which the cylinders remained un-utilised. 3) For that since the aforesaid realization of expenses were not in relation to any excisable goods manufactured or supplied, hence the question of undervaluation of goods does not arise. 4) For that the learned Assistant Commissioner of Central Excise, Howrah West , Division - I has failed to consider the following judgments in favour of the applellant:(a) The Supreme Court Bench dismissed the Civil Appeal filed by Collector of Central Excise, Kanpur against the CEGAT Order reported in 1991 (54) E.L.T. 333 (Tribunal) (Spring Fresh Drinks v. Collector); (b) Commissioner Of C. Ex., Jamshedpur Versus Bhagwati Oxygen Ltd. 2000 (117) E.L.T. 647 (Tribunal); (c) Faridkod Cooperative Sugar Mills Ltd. Vs. Commissioner Of Central Excise - 2004 (171) E.L.T. 174 (Tri. - Del.); (d) Inox Air Products Ltd. Vs. Commissioner Of Central Excise - 2001 (134) E.L.T. 224 (Tri. – Mumbai); (e) Collr. Of C. Ex., Bombay Versus Ram Decorative & Industries Limited - 2000 (124) E.L.T. 659 (Tribunal).

Thanking you,

Yours faithfully,

Vinay Kumar Shraff (Authorised representative)