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2017 (5) TMI 756 - AT - Central ExciseClassification of goods - Soft Drink Concentrates - admissibility of benefit of N/N. 3/2005-CE, dt.24.02.2005 - For Soft Drink Concentrates , there are only two sub headings one for Sharbat which is covered by Heading 2106.9011 and second one is Other category which is covered by Heading 2106.9019 - under what sub-heading the Soft Drink Concentrates will be classified? - Held that: - there cannot be two opinions regarding the classification of the item Soft Drink Concentrates (unbranded) and, therefore, its correct classification is 2106.9019 only - the assessee is pleading the classification of their goods under Central Excise Tariff Sub Heading 2106.9099 for which there is no basis as per the material given by them especially when there is specific entry for Soft Drink Concentrates in the Tariff as mentioned above. Therefore, the appellant's pleading for the said classification is rejected. Benefit of N/N. 3/2005-CE, dt.24.02.2005 - Held that: - the goods have already been sold to the customers and there is no likelihood of further recovery from the past consumers of any duty of Central Excise, if levied and confirmed against the appellant now - Hon'ble Supreme Court in the case of CCE Delhi Vs Maruti Udyog Ltd [2002 (2) TMI 101 - Supreme Court] has held that the sale price realized by an assessee should be regarded as the price inclusive of excise duty as the purchaser has no obligation to pay any amount in excess of what has already been paid as the price for the goods purchased - the Appellant is entitled to cum duty benefit for the sales made during the period under dispute and the liability of duty of Central Excise against them is to be computed accordingly, for which the matter is being remanded to the Adjudicating authority. Appeal allowed by way of remand.
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