P.C. Jain, Member (T)

1. Since common issues are involved in both the appeals a common order is being passed.

2. Brief facts of the case are as follows :-

2.1 The appellants herein are manufacturers of Aerated waters, namely soda and sweetened drinks falling under Tariff Item No. 1-D. They filed a classification list No. 8/83, dated 1-3-1983 in respect of financial year 1983-84 and another classification list No. 5/84, dated nil in respect of the financial year 1984-85. In both these classification lists the appellants claimed the exemption under Notification No. 148/82-CE dated 22-4-1982 (as amended) and while claiming the exemption the appellants declared their clearance values at Rs. 12,95,395.21 p during the financial year 1982-83, and at Rs. 11,15,631.54p during the financial year 1983-84.

2.2 During the course of verification of the appellants' sales invoices by the departmental officers, it was noticed by them that the total turnover of soda and sweetened drinks were Rs. 24,99,557.05 p during the financial year 1982-83, excluding sales tax, Central Excise duty and actual transportation cost. At this stage, it may be mentioned that what constitutes transportation cost is in dispute between the parties and will be adverted to at the later stage. During the financial year 1983-84 total value of clearances for soda and sweetened drinks was noticed at Rs. 27,44,610.60 p including everything except the sales tax.

2.3 On the basis of the aforesaid figures of clearance values, it was alleged by the department in a show cause notice, dated 16-7-1985 that the clearances of the company in the financial year 1982-83 was far above the ceiling of Rs. 15 lakhs stipulated in Notification No. 148/82-CE, dated 22-4-1982. It was also alleged that while claiming exemption under the said notification the appellants deliberately mis-declared their turnover during the year 1983-84 at Rs. 11,15,631.64 p whereas the actual turnover was Rs. 27,44,610.60 p excluding the sales tax. It was further alleged that even after deducting the element of Central Excise duty to the tune of Rs. 85,536.10 p paid during the period 1983-84, expenses incurred on salaries of drivers, petrol charges, repairs and maintenance of vehicle which formed part of transportation cost during the year 1983-84 to the tune of Rs. 1,80,711.73 p as verified from the books of accounts maintained by the appellants, the total clearance value of the aerated waters of the appellants during 1983-84 worked out to Rs. 24,78,362.77 p which again is far above the ceiling limit of Rs. 15 lakhs.

2.4 It was also alleged that the appellants have collected an amount in the form of transportation and handling charges higher than the actual amounts paid by them in respect of those two heads and thus have mis-declared the value of clearances leading to evasion of duty. Accordingly, the show cause notice (which was corrected by a corrigendum, dated 27-12-1985 asking the appellants to show cause to the Collector) demanded duty of Rs. 2,72,540.45 p for the year 1983-84 and Rs. 2,48,666.27 for the year 1984-85 inasmuch as the clearances of the appellants during the previous financial years had exceeded Rs. 15 lakhs and therefore, they were not entitled to exemption Notification No. 148/82 in the succeeding financial years 1983-84 and 1984-85.

2.5 The adjudicating authority, namely Collector of Customs and Central Excise, Goa after due adjudication, confirmed the demand. He has also imposed a penalty of Rs. 1,04,000/- on the appellants under Rule 173Q.

3. Similarly, in the other appeal No. E/766/88-D the Additional Collector of Central Excise, Goa, has demanded a duty of Rs. 85,606.20 p on clearances effected during the period 1-9-1985 to 31-12-1985 inasmuch as the value of clearances exceeded Rs. 15 lakhs during the financial year 1984-85. A personal penalty of Rs. 17000/- has also been imposed on the appellants. It is noticed from the Addl. Collector's order that she has followed the reasonings adopted