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2015 (11) TMI 961

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..... t is clear that the only price that was spoken about even by the interim orders was the price “fixed under any law for the time being in force” and thus an interim order fixing the higher price would also be an order which fixes a price “under any law for the time being in force”. - Order of Tribunal is set aside - Decided in favour of Revenue. - CIVIL APPEAL NO(S). 1030/2007 - - - Dated:- 23-9-2015 - MR. A.K. SIKRI AND MR. ROHINTON FALI NARIMAN, JJ. For The Appellant : Mr. K. Radhakrishnan, Sr. Adv., Ms. Sunita Rani Singh, Adv., Ms. Shirin Khajuria, Adv., Mr. H.K. Naik, Adv., Mr. B. Krishna Prasad,Adv. For The Respondent : Mr. Alok Yadav, Adv., Ms. Ruby Singh Ahuja, Adv., Mr. Utsav Trivedi, Adv., Mr. Chahat Chawla, Adv., Mr. S .....

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..... d in the show cause notice. The matter was taken in appeal by the respondent before the Commissioner. The Commissioner vide order dated 29th June, 2001, held that such a differential duty could have been charged. However, he further found that some of the period for which the assessee was directed to pay the duty was not covered by the show cause notice and on that ground alone matter was remitted back to the Assistant Commissioner for recalculation of the duty only for the period covered by the show cause notice i.e. March, 1978 to November, 1980. On remand the Assistant Commissioner went into the aforesaid calculations for the aforesaid period and found that the amount realisable on differential duty was ₹ 30,58,904.79. However, .....

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..... on this aspect and find adequate force in the submission made by Mr. Radhakrishnan. Section 4 of the Central Excises and Salt Act, 1944, which was invoked at the relevant time and deals with the valuation of excisable goods for purposes of charging of duty of excise, reads as under: 4. Valuation of excisable goods for purposes of charging of duty of excise. (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section, be deemed to be- (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and plac .....

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..... sell such goods in retail; (b) where the normal price of such goods is not ascertainable for the reason that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. (2) Where, in relation to any excisable goods the price thereof for delivery at the Place of removal is not known and the value thereof is determined with reference to the price for delivery at a place other than the place of removal, the cost of transportation from the place of removal to the place of delivery shall be excluded from such price. (3) The provisions of this section shall not apply in respect of any excisable goods for which a tariff value has been fixed under sub- sectio .....

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..... nd other taxes, if any, payable on such goods and, subject to such rules as may be made, the trade discount (such discount not being refundable on any account whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale. e) wholesale trade means sales to dealers, industrial consumers Government, local authorities and other buyers, who or which purchase their requirements otherwise than in retail. As per clause (a) of sub-Section (1) of Section 4, the duty which is payable is on a normal price of the goods i.e. price at which the goods are ordinarily sold by the assessee to a buyer. As pointed out above, the High Court had passed interim .....

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..... o that the excess realisation of free sale sugar would not be taken into account. After various judgments were delivered in the States of U.P. and Maharashtra by the respective High Court, the matter was finally concluded by this Court in Malaprabha Co-operative Sugar Factor Ltd.(supra) . In paragraph No. 107 thereof this Court ultimately agreed with the contention of the sugar companies and cooperative societies and thus ultimately upheld the higher price as the notified price stating that the excess realisation of free sale sugar could not be mopped up. Paragraph No. 107 reads as under:- 107. We are in agreement with the above observations since the approach to price determination is in the proper perspective. It may also be add .....

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