9911796707
TMI Blog1997 (6) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... es under Rule 209A are not represented nor there is any request for adjournment received on their behalf despite notice. 2. Arguing for M/s. Krishna Industrial Chemicals, the learned Consultant for the appellants Shri S.R. Narayanan has pleaded that the main charge against the appellants are two fold (i) that the appellants had collected certain additional amounts over and above the amounts reflected in the invoiced by raising debit notes. (ii) The appellants have sold the goods at a much lower price to two firms viz., M/s. Krishna Chemicals and M/s. Madras Chemicals Co. He has pleaded that the duty demanded from the appellants by taking into consideration the amounts collected as above and also by revising the assessable value in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds additional sales tax, he has pleaded the learned lower authority in Para 30 has held as under : Regarding their claim for abatement on account of Additional Sales Tax, I observe that the case under my consideration is demand of differential duty on Sulphuric Acid removed without payment of proper Central Excise duty by under-valuing the same. There is demand of duty due to increase in assessable value in certain transactions. The demand is for earlier periods. If they want to claim any abatement towards additional sales tax, they should have claimed at the time of removal of goods. Otherwise they should have filed a refund claim immediately after the finalization of sales tax assessment/payment of additional sales tax to the proper aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lisation by way of debit notes have to be added. His plea is after adding the extra realisation to the figure as reflected in the invoices as sales price the same should be taken as the basis for the purpose of arriving at the assessable value in respect of sales made to these two firms. He has pleaded that the quantum of sales made to these firms should also be taken as a relevant consideration while taking note of the sales price of the goods to others as the basis. 5. In regard to the penalty he has pleaded that the appellants had shown their bona fides by depositing over 11/2 lakhs of rupees towards duty, even before the issue of the show cause notice. He has pleaded that the appellants are a small scale manufacturers and, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the handling and transport charges in the invoice and later they chose to delete this entry from the invoice and resorted to the raising of the debit notes. We find no justification for what the appellants had done. Obviously the intention was to evade payment of duty by suppressing the actual value from the department. 8. We under the circumstances hold that the learned lower authority has rightly taken into reckoning the extra realisations made in arriving at the assessable value. The total realisation as made by the appellants, therefore, has to be taken as the sale price. From the sale price the available deduction under the law will have to be allowed. 9. The learned lower authority has denied the appellant's plea for aba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en note of while demanding the duty in terms of the proceedings now drawn. Further, the other admissible abatement will also have to be given to the appellants and one of the abatement sought is the duty element which is now sought to be recovered from the appellants. In this connection we observe that the First Bench of the Tribunal in the case of Pawan Tyres v. CCE, Chandigarh reported in 1997 (93) E.L.T. 635 (Tribunal) = 1997 (19) RLT 66 CEGAT (SB) has held as under : 2. Department has no case that besides price collected, any amount has been collected as excise duty. Therefore, whatever amount was collected must be treated as amount collected on the basis of cum-duty price. That being so, the amount of Rs. 30,389.25 which was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the view that the appellants plea in this regard has to be allowed. 10. In regard to the assessable value in respect of the goods sold to the two firms viz., M/s. Krishna Chemicals and M/s. Madras Chemicals Co., the price adopted by the appellants vide their invoices was Rs. 1,300/- per MT while the revenue has fixed the value as Rs. 2,300/- per MT. We observe that when the price as fixed has been found to be low, that means the invoice price of the appellants has not been accepted. Then in that event the authorities should have resorted to the Valuation Rules while fixing the value. It is seen that the appellants had been selling the very same goods to various other customers in various quantum and in those cases apart from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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