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2023 (12) TMI 3 - AT - Central ExciseRefund of Excise Duty - transaction value - amount raised through Debit notes (cost difference) can form part of transaction value under Section 4 of the Central Excise Act or not, so as to make the excise duty paid to be correct in regard to transaction value of the goods cleared? - HELD THAT:- The transaction value means, the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay. This has two parts. Firstly, the price actually paid or payable when the goods are sold. Secondly, it includes in addition to the amount as price, any amount that the buyer is liable to pay. It is an admitted fact that debit notes have been raised after the clearances of the goods i.e. after sale of the goods. Further, the repeated communications by M/s.Mando India shows that they have never accepted to honour the increased price or the cost difference. If M/s.Mando India had agreed to pay the higher revised price it would definitely form part of the transaction value. As per the purchase orders or as per the communications between the parties there is no evidence to show that M/s.Mando India has agreed or is liable to pay the cost difference. The loan advance to the appellant by M/s.Mando India cannot be considered as an additional consideration or a consideration that has influenced the price agreed between the parties. The loan has been completely repaid by the appellant by adjusting in the invoices while making clearances of the products to M/s.Mando India. Further the debit notes have been raised subsequent to sale. Therefore, the higher revision of price not agreed by the buyer cannot form part of transaction value. The debit notes do not form part of transaction value. The excise duty paid is therefore excess. In the case of PETROFAB VERSUS COMMISSIONER OF C. EX. & CUS., VADODARA [2007 (11) TMI 118 - CESTAT AHMEDABAD] a similar issue came up for consideration - The Tribunal held in favour of the assesee holding that the supplementary invoices have been issued after the goods have been sold and cannot form part of transaction value. The Commissioner (Appeals) has relied upon the decision in the case of FIAT India Pvt. Ltd. [2012 (8) TMI 791 - SUPREME COURT]. The facts of the said case do not apply to the situation here for the reason that in the said case the assessee was consciously clearing the goods for a lesser price to make way into the market. The Commissioner (Appeals) has erred in allowing the appeal filed by the department and in upholding the order of recovery of erroneous refund passed by the adjudicating authority - the appellant is eligible for refund. The impugned orders passed by Commissioner (Appeals) are set aside - Appeal allowed.
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