TMI Blog2006 (11) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... e excisable goods viz. Liquified Petroleum Gas (LPG in short) falling under Chapter Sub-heading 2711.19 of CET Act 1985 for domestic use and Superior Kerosene Oil (SKO in short) falling under Chapter Sub-heading 2710.91 of CET Act, 1985 for Public Distribution System on payment of duty on the value fixed by the Administered Price Mechanism (APM in short). The Revenue's case is that as per provisions of Section 4 of CE Act, w.e.f. 01.07.2000, in cases where the goods are sold by the assessee for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and price is the sole consideration for the sale, then the value should be the Transaction Value and it includes the price actually paid or pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JDR fairly concedes the position that the issue is covered by the Larger Bench judgment. However, he reiterates the departmental view. 4. We have carefully considered the submissions and find that this issue was referred to the Larger Bench of this Tribunal in the case of Gas Authority of India Ltd. (cited supra). The Gas Authority of India Ltd. also took up the same contention as taken in the present case that the Administrative Price Mechanism covers the assessable value of the products for the purpose of levy of excise duty. The Larger Bench accepted their contention and set aside the demands raised as short levy. The findings recorded in paras 7 to 13 are reproduced herein below: 7. In deciding the issue, we are conscious of our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a closer scrutiny we find it difficult to accept the same. In packed form different prices are fixed by OCC depending on user. Therefore, it is evident that the packing is not the sole basis for the fixation of the price. The use to which it is put decides the price. Likewise, the removal in bulk can also be for different purposes. If it is earmarked for domestic consumption, the price that will be fetched on such sale should be fixed as assessable value. If a different interpretation is adopted, it will upset the entire price structure and the policy of the Central Govt. as discernable from the speech made by Finance Minister in Lok Sabha. 9. Mr. M. Chandersekharan further submitted that the principles laid down by Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir Lordships of the Supreme Court in Oil and Natural Gas Commission vs. Collector of Central Excise, 1992 (61) ELT 3 as clarified in 1994 (70) ELT 45 directed the Central Govt. to set up a High Power Committee to resolve controversies between a Ministry and another Ministry of me Govt. of India, a Ministry and a Public Sector Undertaking of the Govt. of India and between Public Sector Undertakings themselves. Such High Power Committee should, as per the decision, endeavour to resolve the matters in dispute. If that Committee is unable to resolve the matter for reasons to be recorded by it shall grant clearance for the litigation. Scant respect to this mandate of the Supreme Court has been shown by the High Power Committee. Committee did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s owned by any of the oil marketing companies, for the purpose of declaring the assessable value for Excise duty payment, the selling prices as applicable for the intended sale from such bottling shall only be applied and the excise duty liability shall be discharged by the gas extraction plants/petroleum refineries accordingly. 12. This clarification is in consonance with the view reached by us. When the Petroleum Ministry was having this view, the High Power Committee should have at least considered the same in a purported attempt to resolve the dispute arid given reasons for deviating from that view. The High Power Committee in the case on hand dealt with the issue in a casual manner only to give an impression that the direction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lade Beverages Ltd. and Brindavan Beverages (supra) and catena of other judgments which have clearly held that subsidy given to a manufacturer is not to be added to the sale price. All the facts were known to the department and clearance were made under invoices. In these circumstances to hold that there is suppression and also to impose fine and penalty is totally unjustified. The Order of the Commissioner to say the least is perverse and is not acceptable, particularly when he holds that there exists mens rea on the parts of PSU unit. The issue is they were to collect duty only on the value of price fixed by the Govt. and that additional consideration received as product price is not part of the price at all. In terms of the Board Circula ..... X X X X Extracts X X X X X X X X Extracts X X X X
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