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M/s HPL Socomac Ltd. Versus Commissioner of Central Excise, Gurgaon

2015 (320) E.L.T. 33 (SC) - Denial of refund claim u/s 11B - Valuation - revision in price at lower rate - reduction of penalty of upto 5% on account of delay in delivery - The Commissioner (Appeals) by his order dated 18.6.2004 held that as per Section 4 of the Central Excise Act, where the duty of excise is chargeable on any excisable goods with reference to their value, then on the date of removal of such goods from the factory premises such value will be the transaction value.

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Dated:- 8-5-2015 - A. K. Sikri And Rohinton Fali Nariman,JJ. For the Petitioner : Mr V Lakshmikumaran, Adv., Mr M P Devanath, Adv., Mr Vivek Sharma, Adv., Ms L Charanaya, Adv., Mr Aditya Bhattacharya, Adv., Mr R Ramachandran, Adv., Mr Hemant Bajaj, Adv., Mr Anandh K, Adv. and Mr Rajesh Kumar, Adv. For the Respondents : Mr A K Sanghi, Sr. Adv., Ms Nisha Bagchi, Adv., Mr B Krishna Prasad, Adv., Ms B Sunita Rao, Adv., Ms Sujeeta Srivastava, Adv. and Ms Pooja Sharma, Adv. ORDER M/s HPL Socomac Priv .....

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for supply of 65,000 single phase (5-20 Amp.) electronic meters @ ₹ 1,120/- per meter on FOR basis. The price was inclusive of taxes, freight and insurance charges. Under condition No.6 of the purchase order, the full quantity of 65,000 electronic meters was required to be supplied upto 31.3.2002. The appellant supplied 30,000 electronic meters upto 31.3.2002 @ ₹ 1,120/- per meter. The balance quantity of 35,000 meters was supplied between 8.5.2002 and 28.5.2002. Prior to the supply .....

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llant gave the necessary undertaking. By a letter dated 17.10.2002, M/s DHBVNL informed the appellant that the meter rate as per the new rate contract had been decided at ₹ 600 /- FOR and, therefore, this being lower than 5% of ₹ 700/- per meter, which would have been the penal amount on account of delay, the said rate of ₹ 600/- per meter was fixed against delivery of the aforesaid meters. The Commissioner (Appeals) by his order dated 18.6.2004 held that as per Section 4 of th .....

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upheld the order in original rejecting the refund claim filed by the appellant. The CESTAT by the impugned order dated 4.2.2005 confirmed the order of the Commissioner (Appeals) stating: "We have perused the records and heard both the sides. It is noted that the original assessment and payment of the duty took place at the contracted price. The change in the amount paid is on account of imposition of penalty for delayed period. The penalty is separate from the price of the goods. There is .....

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cause it did not refer to the price novation between the parties agreed upon on 15.4.2005 which was before the goods had been removed from the factory premises in May, 2002. Shri A.K. Sanghi, learned senior advocate appearing on behalf of the revenue argued that in principle the Commissioner (Appeals) was correct and that any subsequent variation of price between the parties after removal of goods from the factory premises cannot possibly be the transaction value under Section 4 of the Central E .....

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