TMI Blog2011 (9) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... that:- Demand of duty not sustainable. Duty on samples - Held that:- samples have not been removed from the factory and if the goods are not removed duty cannot be paid. - E/436/2005 - - - Dated:- 15-9-2011 - SHRI B.S.V.MURTHY, SHRI ASHOK JINDAL, JJ. Appearance: Shri Dinesh Jha, Consultant for the Appellant (s) Shri A.K.Sharma, Deputy Commr.(A.R.) for the Respondent (s) Per Shri B.S.V.Murthy. 1. The Appellants are a Small Scale Industrial Unit, located in rural area and are entitled to full exemption from payment of duty for the aggregate value of first clearance of Rupees One Crore in respect of goods manufactured relating to Own Brand as well as the Brand of other parties who are not availing SSI exemption, during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are several decisions of the Tribunal taking a view that if different MRPs are not on the same package, the highest of the same cannot be taken for the purpose of assessment under Section 4A. He relies upon the following decisions :- (a) 2002 (144) ELT 506 (KAR.) H R JOHNSON (I) LTD. VS. CENTRAL BOARD OF EX. AND CUS. NEW DELHI. (b) 2004 (166) ELT 409 (T-DEL) HINDUSTAN COCA COLA BEVERAGES PVT.LTD. VS. C.C.E. ALLAHABAD (c) 2002 (146) ELT 144( T-DELHI) C.C.E. JAIPUR VS. JAIN DRINKS (P) LTD. (d) GOA BOTTLING CO. V. CCE - 2004 (140)-ELT 94 (T) 6. In view of the precedent Tribunal decisions cited above by the learned Counsel and following the same we agree with the learned Consultant that duty demand should not have been confirme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of 25% duty towards penalty within 30 days. Therefore we consider it appropriate that such an option has to be extended to the Appellants now in view of the decision of the Hon'ble Delhi High Court in the case of K.P.Pouches v. UOI - 2008 (228) ELT 31(Delhi). Since appellants have deposited Rs.30,000/- as pre-deposit, amount available with Revenue is more than what is due. In view of the above discussion the duty payable on clearances to Railway shall be adjusted with interest and 25% of duty towards penalty under section 11AC of Central Excise Act, 1944 by the Revenue balance shall be refunded after getting an application as per law existing instructions. If duty, interest and penalty to the extent of 25% of duty is not paid w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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