TMI Blog2003 (6) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant before us. 2. We think it relevant, for a full understanding of the case, to reproduce the assessee s letter to the Deputy Commissioner, as follows :- We are selling post mix canisters to McDonalds from our factory at Wada at the prices shown in the Invoices. Since excise duty is payable on the assessable value determined u/s 4 of the Central Excise Act, 1944, on the basis of Transaction Value , being the actual price at which goods are sold to McDonalds from our factory, we maintain that we are correctly paying the duty of excise in respect of such sales. However, since the department is objecting to payment of duty on the basis of the actual price on which sales are made to McDonalds from our factory, we are applying for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below the normal price which is available with you. You have neither given any reason/basis for arriving at the such assessable value, nor have produced any copy of contract/agreement. Further, there is no dispute regarding the rate of duty. Thus there is no reason to resort to provisional assessment, in respect of goods sold to M/s. McDonalds when the normal price is available with you. As regards the cleat-311Ce of scrap for which the assessee has requested permission for provisional assessment under the provisions Rule 7 of the said Rules, it is felt beyond doubt, that clearances of scrap is not governed by the provisions of Rule 7 of the said Rules, as the value of excisable goods is available with you and there is no dispute regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has dismissed the appeal on the ground that the price and rate of duty was readily available. 4. At first blush, the matter would appear to be simply one where a request for provisional assessment has been desired. But closer examination will reveal that is not the case. The Deputy Commissioner has refused the provisional assessment of the goods, the refusal has been endorsed by the Commissioner (Appeals), solely on the ground that since the normal price is known to the assessee, the provisional assessment is unnecessary. 5. It is clear to us from this that the Deputy Commissioner does not accept as correct that the prices at which the appellant sells the goods McDonalds, solely on the ground that they were being sold to other buyers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. 7. By applying the law as it stands, it is clear to us that the value of the goods for assessment of the goods sold by the appellant to McDonalds should be the price actually paid or payable by McDonalds to the appellant in respect of each removal from the factory. We are concerned with the period after 21-2-2002 when the Deputy Commissioner wrote his letter. To take an example, the appellant sold Fanta in 18 litre post fixed canister to McDonalds at a price of Rs. 1,208/-. This is evident from invoice No. 14043 dated 24-12-2001. The transaction value could not include the elements of tax (central sale tax R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same order, the Deputy Commissioner has refused to allow provisional assessment of the waste and scrap of glass bottles, plastic carboys, carton boxes, mango tins, empty tins, paper and plastic. The waste of bottles arose because some of the bottles which the appellant used to pack its beverages broke during handling. The ratio of the judgment of the Supreme Court in Dillon Kool Beverages Pvt. Ltd. v. CCE - 2002 (144) E.L.T. A210 that such waste is not liable to duty will apply. The appellant had various inputs packed in tin, packet etc. this mango pulp for making of beverage in tins. It receives beverage base from which the manufacturer packs it in plastic carboys. Such tins and cartons after they are emptied are not usable and duty h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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