TMI Blog1996 (4) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... by issue of show cause notice dated 6-6-1994 (copy of the show cause notice attached is not bearing any date). He has pleaded that in terms of the show cause notice, the demand has been raised on the grounds that the appellants wholesale cash price was inclusive of an element of duty and since the appellants were clearing the goods based on this wholesale cash price and inasmuch as no duty as such was being paid by them in terms of exemption Notification No. 49/86 dated 10-2-1986 as amended from time to time. The element of duty which was included in the wholesale cash price and which was collected from the customers would not have been retained by the assessee and the same was therefore required to be paid to the Welfare Fund under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice for determination of value in terms of the statutory provisions of Section 4 of the 1944 Act, there is or can be absolutely no scope for making any assumption as if any duty was realised by us from the buyers. You would kindly appreciate that when the fact about the said exempted variety of footwear being duty free is clearly mentioned in the price lists themselves and when no amount towards duty is realised from the buyers, the question of making any assumption as regards our having realised any amount towards duty from the buyers obviously does not and cannot arise. The said allegation made in the said notice is factually incorrect, contrary to records and wholly without any basis or material and we deny and dispute the same. He has p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the period in question and the discussion in the order basically is on the legal points as to whether where the appellants had shown abatement of duty from the wholesale cash price the duty has to be taken to have been collected by the appellants and the learned lower authority in his concluding portion has suddenly come to the conclusion that an amount of Rs. 3,33,90,893.00 was required to be paid by the appellants under Section 11A read with Section 11D of the Central Excises and Salt Act, 1944. He has pleaded that even in this Asstt. Collector s order no detailed statements as to how this amount of over Rs. 3.00 crores has been computed has been given. He has pleaded that the learned lower authority s order has no detailed facts set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant appeal. He has pleaded that unless the appellants were put on notice as to the basis of the demand of over Rs. 3.00 crores the appellants could not have been able to explain their position in regard to the quantum. He has pleaded therefore the appellants were prejudiced and in fact there has been for that reason denial of principles of natural justice. He has pleaded the appellants understanding on going through the records is that the demand has been raised in respect of those varieties of footwear whereas it is the wholesale cash price is below the exemption limit as set out in the Notification. No. 49/86 and the question of he (sic) pleaded of abatement of Central Excise duty for arriving at the assessable value does not arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact remains that in law if any element of duty is included in the wholesale cash price and the same has been collected from the customers, the appellants are liable to pay the same to the Government in terms of Section 11D of Central Excises and Salt Act. He has pleaded that the appellants had been filing price lists from time to time wherein they have been showing the wholesale price, the abatement of discount to be made therefrom and also the abatement of excise duty and thereafter they have been showing the assessable value in the last column. He is asked as to how the duty element has been taken to be included in the wholesale cash price where, as pleaded by the learned Advocate, the wholesale cash price itself is below the exemption l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority that the demand has been raised in cases where the duty element as such while it has been shown to be abated in the price list but the wholesale cash price itself was below the exemption limit. No worksheet or data has been set out either in the show cause notice issued [or] in the order of the learned original authority nor the learned lower appellate authority has felt the necessity to refer to the data before upholding the order of the learned original authority. We observe that while the quantum of demand is required to be reflected in the show cause notice the basis for the same is also required to be set out in the show cause notice. In the present case we observe while the demand has been raised for the period 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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