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TMI Blog2015 (3) TMI 1096X X X X Extracts X X X X X X X X Extracts X X X X ..... h the appellant were liable to pay duty @ 9.6% upto Rs.one crore during the financial year with the cenvat credit facility and in respect of clearance beyond Rs.one crore they were liable to pay duty @16% with the input credit facility. The appellant during this period entered into a contract with UP Power Corporation Ltd. (UPCL), and according to the contract, the excise duty in respect of all the supplies was to be reimbursed @ 9.6% only. The appellant in respect of the clearance upto Rs.one crore during financial year 2001-02 and 2002-03 paid duty @ 9.6% and received excise reimbursement from the UP Power Corporation at this rate. However, in respect of clearances during these financial years beyond Rs.one crore, while the appellant paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e during financial years 2001-02 and 2002-03, that in respect of clearance beyond Rs.one crore, though the appellant, in terms of their contract with UPCL, received duty reimbursement @9.6% only, they had paid the duty @ 16% adv. and therefore abatement of duty should be @ 16% adv, by treating the price realized as cum duty price, that in this regard, he relies upon apex court judgement in the case of CCE vs. Maruti Udyog Ltd.-2005 (179)ELT A102(SC) and CCE vs. Srichakra Tyres Ltd.- 2002 (142) ELT A279 (SC), that in the appellants own case for the previous period, the Tribunal in its judgement reported in 1998 (104) ELT 352 has held that while determining the assessable value, whatever duty was actually payable has to be deducted and sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in the appellants own case reported in 1998 (104) ELT 352 wherein an identical issue was involved and the Tribunal held that though in respect of clearance beyond Rs. 75 lakh in a financial year, the appellant were liable to pay duty at the rate of 30% adv., while their duty reimbursement from UPCL was restricted to only 20%., the duty which is actually payable has to be deducted in arriving at the assessable value. This decision has been followed in two more final orders in the appellants own case, involving identical issue No.780-782/98-A dt. 21.5.98 and No.983-996/98-A dt.17.7.98. Following the above orders of the Tribunal, we hold that the impugned order is not sustainable. The same is set aside. The appeal is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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