Custom, Excise & Service Tax Tribunal
C.C.E., Chandigarh I vs H.F.C.L. (Wireless Division) on 5 February, 2014
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing/decision: 5.2.2014 For approval and signature: Honble Mr. Justice G. Raghuram, President Honble Mr. Rakesh Kumar, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Central Excise Appeal No.3210 of 2004 Arising out of the order in appeal No.231/CE/CHD/04 dated 29.3.2004 passed by the Commissioner (Appeals), Central Excise, Chandigarh. C.C.E., Chandigarh I .. Appellant Vs. H.F.C.L. (Wireless Division) . Respondent
Central Excise Appeal No.1016 of 2005 Arising out of the order in appeal No.709/CE/CHD/2004 dated 11.11.2004 passed by the Commissioner (Appeals), Central Excise, Chandigarh.
Himachal Pradesh Futuristic communication .. Appellant
Ltd.
Vs.
C.C.E., Shimla . Respondent
Appearance:
Present Shri M.S. Negi, A.R. for Revenue
Present Shri Balbir Singh with Shri Rupender Singh, Advocates for assessee.
Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. Rakesh Kumar, Technical Member Final Order No. 50369 50370/2014 Per Justice G. Raghuram:
These are appeals preferred by Revenue and the assessee respectively. Excise Appeal No.3210/2004 is preferred by Revenue against the Appellate order dated 29.3.2004 while Excise Appeal No.1016/2005 is by the assessee who is the respondent in Revenues appeal. This appeal is preferred against the Appellate order dated 11.11.2004 confirming the order of adjudicating authority denying the assessees claim for refund of excise duty, arising as a consequence of the liquidated damage charges imposed by MTNL/BSNL/DoT on delayed supplies by the assessee, beyond the agreed schedule agreed for supply of telecommunication equipment manufactured by the assessee, covering the period 30.7.2001 to 30.10.01 and 29.6.02 to 28.10.02, in the respective appeals.
2. It is the conjoint submission of the ld. A.R. for Revenue and the ld. Counsel for the assessee that the issue is covered by the Larger Bench decision of this Tribunal in Commissioner of Customs and Central Excise, Hyderabad IV vs. Victory Electricals Ltd. 2013 (298) ELT 534 (Tri-LB). The Larger Bench ruled that wherever the assessee, as per terms of the contract between the parties and on account of delay in delivery of manufactured goods, is liable to pay a lesser amount than the generically agreed price as a result of a clause stipulating variation in the price, on account of liability to liquidated damages, irrespective of whether the clause is titled penalty or liquidated damages, the resultant price would be the transaction value; and such value shall be alone liable to levy of excise duty, at the applicable rate.
3. In the light of the judgment of the Larger Bench, the assessee is entitled to succeed. Consequently, Excise Appeal No.3210/2004 preferred by Revenue against the Appellate order which has taken a similar view of the matter, is rejected. Excise Appeal No.1016/2005, wherein the Appellate authority recorded a conclusion which is at variance with the law declared by the Larger Bench, is allowed. There shall however be no order as to costs.
(Justice G. Raghuram) President (Rakesh Kumar) Technical Member scd/ 2