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2010 (11) TMI 911 - AT - Central ExciseSSI exemption - N/N. 8/2002-C.E. during 2002-03 and under N/N. 8/2003-C.E., dated 1-3-2003 - clubbing of clearances - whether the price charged from the customers is to be treated as cum-duty price and duty liability must be recomputed by determining the assessable value after abating the duty from the sale price? - Held that: - the price charged by an assessee from his buyer including the money value of the additional consideration, if any, flowing from the buyer of the assessee, is deemed to be including the excise duty payable on such goods, since the period of dispute in this case is 2004-05, i.e. after 13-5-2003 the explanation added to Section 4(1) with effect from 14-5-2003 has to be taken into account and accordingly the price realised by the assessee has to be treated as including excise duty and the assessable value has to be determined after abating the element of duty from the sale price. The Commissioner (Appeals), while deciding this point against the Appellant, has not considered the provisions of Explanation to Section 4(1) and hence the part of the impugned order disallowing the abatement of Central Excise duty from the price charged is not correct and the matter has to be remanded to the adjudicating authority for re-computing the duty demand by treating the price charged by the Appellant as cum-duty price and determining assessable value after abating the Central Excise duty - matter on remand. Whether Penalty u/r 25(1) of CER, 2002 is imposable on the Appellant? - Held that: - From the language of clause (a) (b) and (c) of Rule 25(1), it will be seen that for imposition of penalty for contraventions mentioned in these clauses, “intention to evade the payment of duty” is not required and mere contravention of the provisions of the Central Excise Rules or of the notification issued under the rule is sufficient for attracting penalty - Since in this case, the goods were cleared by the Appellant during April 2004-Jan. 2005 paid without discharging duty liability and thereby contravening the provisions of Rules 4, 6 & 8 of the CER, and this contravention has not been disputed, penalty under Rule 25(1)(a) would be attracted - penalty upheld. Appeal disposed off - part matter on remand and part matter decided against assessee.
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