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2010 (12) TMI 993 - HC - Central ExcisePenalty - benefit of cum-duty price - Whether respondent eligible to avail the benefit of Notification No. 5/98 dated 2-6-1998 and also Modvat credit of inputs used for the goods simultaneously - allegations of wrongful availment of exemption under Notification No. 5/98 dated 2-6-1998 thus duty demanded under Section 11A of the Central Excise Act, 1944 - Tribunal allowed the claim - Held that:- No infirmity can be found in the approach adopted by the Tribunal inasmuch as if the assessee is not entitled to exemption under the notification in question, it would certainly be entitled to avail of Modvat credit in respect of the raw material used in the manufacture of the goods in question. As regards the grant of benefit of cum-duty price, the Supreme Court in the case of Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd., (2002 (2) TMI 101 - Supreme Court) has held that the wholesale price which is charged is deemed to be the value for the purpose of levy of excise duty, but the element of excise duty, sales tax or other taxes which is included in the wholesale price is to be excluded in arriving at the excisable value, order of the Tribunal being in consonance with the principle laid down in the aforesaid decision, it is not possible to state that the Tribunal has committed any legal error in directing that the sale price of the goods should be treated as cum-duty price for the purpose of valuation and determination of duty amount, no findings as regards suppression or mis-declaration. Tribunal was justified in setting aside the penalty, appeal is, accordingly, dismissed
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