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2014 (5) TMI 384 - SUPREME COURTDuty demand - Demand of differential duty - Difference in price of tractors and duty paid - Assessee contends that the difference in price has been on account of freight, after sale service charges, dealer's margin, expenses in respect of marketing, selling etc - Held that:- In Collector of Central Excise v. M/s. Indian Oxygen Ltd., [1988 (7) TMI 58 - SUPREME COURT OF INDIA], referring to the decision in Union of India v. Bombay Tyre International Ltd. [1983 (10) TMI 51 - SUPREME COURT OF INDIA], this Court held that in the light of the aforesaid principles it has to be borne in mind that any activity ancillary to but not incidental to the manufacture cannot be included as part of the activity for the manufacture. Any income either in the form of interest on deposits, notional or real earned on the deposit etc. would not be the price for the manufacture though they might be profits or gains, if any, of any ancillary or allied venture. Assessee failed to bring the ascertainable price of the tractor, cost of transportation to depot, etc. to the notice of the High Court. The assessee simply challenged the show-cause notices on the ground that the amended Section 4 is not applicable. The High Court without looking into the relevant fact, only on the ground that sub-clause (iii) to Section 4(b) was subsequently added by amendment including `depot', `premises of consignment agent' or `any other place' or `premises' from where the excisable goods were to be sold after their clearance from the factory, declared the notices illegal and set aside the same. Even the matter was not remanded back to competent authority allowing the assessee to bring to its notice "normal price", in course of wholesale trade, place of removal of tractors, transportation charges, etc. There is no option but to set aside the impugned judgment dated 13th September, 2002 passed by the High Court - The case is remitted to the competent authority granting liberty to the assessee to forward a copy of each of the show-cause replies already filed within four weeks. Assessee is also given liberty to produce relevant evidence in support of its claim - Decided in favour of Revenue.
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