1. Rule returnable forthwith. Mr.Pardeshi waives service for the respondents. Heard finally by consent of parties.

2. This petition is directed against the order of the Tribunal dated 20th November, 2009 allowing appeal filed by the Revenue. The facts giving rise to the present petition are as under:

The Facts :

3. The petitioner is a Company duly incorporated under the Companies Act, 1956 and engaged in manufacture of motor vehicles and part thereof at its factory located at Chakan, Pune. The petitioner is selling the said vehicles to its dealers at the factory gate. The said vehicles are cleared on payment of central excise duty on transaction value at the factory gate. The dealer is free to engage his own transporter and carry the goods from the factory gate of the petitioner to his premises. However, in terms of dealer agreement, petitioner arranges for transportation/ transit insurance of behalf of the dealers and thereby undertakes to deliver the goods at the doorstep/ premises of the dealer. The said transportation charges referred to as Road Delivery Charges (RDC for short) are recovered from the dealers by showing the same in the sales invoices separately. The petitioner is paying Maharashtra Value Added Tax (VAT) as applicable on the RDC in the invoice for sales within the State.

4. Show cause notices came to be issued to the petitioner periodically alleging that the RDC are includible in the assessable value of the vehicles in terms of section 4(1)(b) of the Central excise Act, 1944 (Act for short) read with rule 5 of the Central Excise Valuation Rules, 2000 for the period from July, 2000 to April, 2005.

5. In reply, the case of the department was that charges collected on account of RDC from the dealers keep on fluctuating; sometimes more than that actually incurred and sometimes less than actually incurred. Excess recovery of RDC is not includible in the assessable value of the vehicles. Accordingly, the above show cause notices proposing recovery of differential duty under section 11A(1) of the Act was required were replied by the petitioner.

6. The respondent No.2 passed order-in-original dated 17th February, 2003, inter alia; holding that RDC is not includible in the assessable value of the final product in as much as the sale takes place at the factory gate, since the place of removal is the factory gate and not the premises of the buyer, as such relying upon the decision of the Apex Court in the case of Escorts JCB Limited v. C.C.E., 2002 (146) ELT 31, respondent No.2 dropped the proceeding initiated against the petitioner under two show cause notices. The said order was not challenged by the Revenue as such attained finality.

7. However, despite the above order, again fresh show cause notices were issued for further period. On contest they culminated in the orders-in-original. The said orders were challenged by the petitioners before the Commissioner of Central Excise (Appeals), Pune without much success. Against the orders of the Commissioner (Appeals), petitioner preferred appeals before the Tribunal. The Tribunal vide its judgment and order dated 26th May, 2008 allowed all the appeals filed by the petitioner and rejected appeals filed by the Revenue. The Tribunal followed the decision of the Apex Court in the case of Escorts JCB Limited (supra) and held that the RDC were not includible in the assessable value of the vehicles. The Revenue challenged the said order of the Tribunal before the Supreme Court. However appeal of the Revenue came to be dismissed on the ground of delay.

8. The respondent No.3 for the intervening period from May, 2005 to March 2007 had issued show cause notices to the petitioner, which again culminated in the order-in- original dated 19th December, 2007 whereunder demands of differential central excise duty were confirmed without imposing penalty.

9. The petitioner filed appeal against the said order before the Commissioner (Appeals), who was pleased to uphold the order-in-original