THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN CENTRAL EXCISE APPEAL (SR) No.3252 of 2006, and CENTRAL EXCISE APPEAL Nos.100, 143, 252, 253, 254, 255, 256, 257, 258,259, 262, 263, 264, 268, 270 and 271 of 2010 Dated:20.09.2010 Between: The Commissioner of Central Excise, Visakhapatnam – II Commissionerate, Port Area, Visakhapatnam …Appellant AND M/s.The Andhra Pradesh Paper Mills Limited, Rajahmundry. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN CENTRAL EXCISE APPEAL (SR) No.3252 of 2006, and CENTRAL EXCISE APPEAL Nos.100, 143, 252, 253, 254, 255, 256, 257, 258,259, 262, 263, 264, 268, 270 and 271 of 2010 COMMON JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) This judgment shall dispose of all the appeals heard together, as similar dispute is involved in these cases. M/s.A.P.Paper Mills, Rajahmundry (APPL), filed refund claims. All of them were allowed by the Assistant Commissioner of Central Excise, Rajahmundry. Some of the appeals by the department were dismissed and some were partly allowed. Aggrieved, the department then moved Customs, Excise and Service Tax Appellate Tribunal, Bengaluru (CESTAT). By final order No.151 to 255 of 2006 dated 30.01.2006 in Appeal Nos.E/1109-1151/2004, E/1152-1194/04 and E/1385-1402/04, the learned Tribunal rejected the appeals. Being aggrieved by the orders of CESTAT, the department has filed these appeals under Section 35G of the Central Excise Act, 1944 (the Act). APPL is a manufacturer of paper and paper boards falling under Chapter 48 of the First Schedule to the Customs Tariff Act, 1975. They clear their goods at the factory gate (duty duly paid) and transfer them to their depots at Chennai, Delhi, Kolkata, Mumbai, Hyderabad etc., on stock transfer basis (STB). They conduct sale through these depots. At the time of sale, they allow various discounts like cash discount, quantity surplus, freight rebate etc., to their customers. For the period from May 1996 to November 1999, APPL filed refund claims on the ground that the goods manufactured by them were sold at lower prices through their depots than the assessment value per metric ton at which price duty was paid at the time of clearing the goods on STB from the factory to the respective depots in different cities. There is no dispute that the price of the goods in the transfer invoice at the time of clearing the goods at the factory gate is higher than the invoice sale price at the time of sale at the depot. There is also no dispute that the duty was paid by APPL at the factory gate on transfer invoice on the assessment value and the value of the goods at depot includes 16% excise duty and 1.8% cess thereon. Be it also noted that APPL vide their letter dated 28.5.1996 informed the department about the system of allowing cash discount to the buyers at their depots and about the transferred goods being sold from the depots to customers/dealers allowing discounts. Their case was that instead of revising ex-mill prices downward as adopted by the other mills, they introduced system of cash discount to the dealers. After receiving the refund claims, the original authority adjudicated and came to the conclusion that the time barred claims cannot be accepted and that the claim becomes ineligible in the cases where the depot invoices do not tally with corresponding factory invoices. Therefore, a show cause notice was issued as to why refund claim should not be limited excluding ineligible items. A personal hearing was granted on 13.8.1999. The order in original (OIO) was passed for refund of eligible amount and the ineligible part was disallowed. Various orders were passed for different period. The assessee as well as the department filed appeals before Commissioner. The appeals by the former were allowed directing entire refund of claimed amount and department appeals were dismissed. The department then filed appeals before CESTAT. By final orders dated 11.02.2003 and 11.06.2003, appeals were allowed and were remanded to the appellate Commissioner. After rehearing the matters, the Commissioner partly allowed the department appeals on 21.7.2004 rejecting the claim for refund for a minor amount. Otherwise the claim for refund by APPL was accepted. As noticed supra, the department again filed appeals before CESTAT, which were rejected by the final order dated 30.01.2006. The Senior Standing Counsel for Central Excise & Custom and the Counsel for APPL do not dispute that the issue raised herein is covered by the judgment of Division Bench, to which one of us (VVSR,J) is a member, in CEA Nos.95 of 2010 and batch, dated 20.8.2010. Therein following the nine-Judge Bench decision of the Supreme Court in Mafatlal Industries v Union of India[1], the Division Bench rejected the contentions of the Revenue and dismissed the appeals. These appeals were also considered by the learned CESTAT along with a batch of appeals. Therefore, the Division Bench decision squarely covers the issue. Following the same, these appeals are also dismissed. No costs. _______________ (V.V.S.RAO, J) ______________________________ (RAMESH RANGANATHAN, J) 20.09.2010 vs/ys [1] (1997) 5 SCC 536 : 1997 (89) ELT 247 (SC)