Customs, Excise and Gold Tribunal - Delhi
Cce vs Shivalik Agro Poly Products on 16 September, 2003
Equivalent citations: 2003(90)ECC846
JUDGMENT P.S. Bajaj, Member (J)
1. This appeal has been preferred by the Revenue against the impugned Order-in-Appeal, vide which the Commissioner (Appeals) has reversed the Order-in-Original passed by the adjudicating authority refusing to accept that the price at the time of clearance of the goods, could not be treated as cum-duty price and as such respondents were liable to duty demanded through show cause notice.
2. The facts are not much in dispute. The respondents cleared the goods under Exemption Order dated 2.11.99 for charitable purposes in relation to the relief and rehabilitation of the people affected by the cyclone in the State of Orissa. However, later on, they were found to be not entitled to the benefit of the Exemption Order, for having failed to produce requisite certificate from the competent authority. They accordingly debited the amount of Rs. 2,23,564 in their PLA towards the discharge of duty. They were however served with a show-cause notice, requiring them to pay differential duty of Rs. 15,18,243.38. The respondents contested the correctness of the notice and contended that the value of the clearances should be taken as cum-duty price. But their plea was not accepted and the adjudicating authority confirmed the demand. The Commissioner (Appeals) had reversed the said order-in-original by observing that the case of the respondents was fully covered by the ratio of the law laid down in Srichakra Tyres Ltd., 2002 (80) ECC 588 (LB) : 1999 (108) ELT 361.
2. The Revenue has come-up in appeal.
3. Ld. SDR has contended that the ratio of law laid down in Srichakra Tyres Ltd., 2002 (80) ECC 588 : 1999 (108) ELT 361 (T) is not attracted to the facts of this case, rather the law laid down by the Apex Court in the case of Asstt. Collector of Central Excise v. Bata India Ltd., 1996 (56) ECC 130 (SC) : 1996 (84) ELT 164 (SC) deserves to be followed and no benefit of cum-duty price principle could be allowed to the respondents.
4. On the other hand, Ld. Counsel has referred to the latest Apex Court judgment in CCE, Delhi v. Maruti Udyog Ltd., 2002 (80) ECC 249 (SC) : 2002 (141) ELT 3 (SC).
5. We have heard both the sides and gone through the facts of the case. We have gone through the ratio of law laid down by the Apex Court in the case of Commissioner of Central Excise v. Maruti Udyog Ltd. (supra), wherein it has been observed that the sale price realized by the assessee has to be regarded as the entire price inclusive of excise duty when he has, by necessary implication, taken on the liability to pay all taxes on the goods sold. The ratio of law laid down in CCE v. Bata India Ltd., 1996 (56) ECC 130 (SC) : 1996 (84) ELT 164 (SC) had also been referred by the Apex Court in para-5 of the order and categorically observed that the value of the clearances has to be taken as cum-duty price. The Apex Court has in that case, also referred to decision of the Larger Bench of the Tribunal in Shrichakra Tyres (supra) and approved the same. Ld. Commissioner (Appeals) by following the law laid down in the said case, for allowing the benefit, of cum-duty price, cannot be said to have committed any illegality. The impugned order passed by him is perfectly valid and we uphold the same. The appeal of the Revenue is consequently dismissed.