TMI Blog2016 (3) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... clearances for the purpose of exemption notification, it should be determined after extending cum-duty benefit. We find that the Tribunal in the case of Meghdoot Gramoudyog Sewa Sansthan vs. CCE, Noida (2010 (11) TMI 911 - CESTAT NEW DELHI ) held that the assessee being found ineligible for exemption, the sale price has to be treated as including excise duty and assessable value determined after abating it. Thus it is clear that the invoices mentioned in Annexure C of the Show Cause Notice has already been included in the Annexure A while computing the value of clearances. Therefore, the demand of duty as shown in Annexure C, as included in Annexure A, cannot be sustained. We find that the demand of Central Excise duty on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isation Plant, Batchmix Asphalt, Concrete Pump, Concrete Batching/ Mixing Plant and spares thereof classifiable under Chapter 84 of the Central Excise Tariff Act, 1985. On 19.7.2006, the Central Excise officers visited the factory of the assessee and noticed that the assessee had wrongly availed SSI exemption benefit under Notification No. 8/2002-CE dated 01.3.2002. A Show Cause Notice dated 27.7.2007 was issued, proposing demand of duty alongwith interest and to impose penalty for the period 2002-2003 to 2006-2007 on the assessee and also to impose penalty on the partner of the assessee firm amongst others. By the impugned order, the adjudicating authority confirmed the demand of duty alongwith interest and imposed penalty of equal amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) Soft Foam Industries Pvt. Limited vs. CCE, Hyderabad - 2013 (292) ELT 270 (Tri. Bang.) (d) Reliance Industrial Products vs. CCE, Daman - 2010 (260) ELT 312 (Tri. Ahmd.) (e) Deekeen Polyesters Pvt. Limited vs. CCE, Surat 2009 (234) ELT 129 (Tri. Ahmd.) 3. The learned Authorised Representative on behalf of the Revenue reiterates the findings of the adjudicating authority. He submits that there is no provisions under Central Excise Act to extend the benefit of cum-duty price. He further submits that the adjudicating authority in Para 25.8 has clearly stated that the duty has not been demanded twice for the same clearance. 4. After hearing both the sides and on perusal of the records, we find that the partner of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise duty also. According to the learned DR, the findings of the Commissioner (Appeals) are in accordance with the ratio of Honble Supreme Courts judgment in the case of Amrit Agro Industries Ltd. v. CCE, Ghaziabad (supra), wherein with reference to the provisions of Section 4(4)(d)(ii) of the Central Excise Act, 1944, as it stood during the period prior to 1-7-2000, it was held that unless it is shown by the manufacturer that the price of the goods includes excise duty payable by him, no question of exclusion of duty element from price for determination of assessable value would arise and that one cannot go by general implication that the wholesale price would always mean cum-duty price, particularly, when the assessee had cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14-5-2003, an important amendment was made to Section 4 by Section 136 of the Finance Act, 2003 by which an explanation was added to sub-section (1) of Section 4. The explanation added is as under :- Explanation. - For the removal of doubts, it is a declared that the price cum-duty of the excisable goods sold by the assessee shall be the price actually paid to him for the goods sold and the money value of the additional consideration, if any, flowing directly or indirectly from the buyer to the assessee in connection with the sale of such goods, and such price cum-duty, excluding sale tax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods. Thus, in terms of this explanation, the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise duty on the partnership firm was confirmed and the penalty was imposed under Section 11AC of the Central Excise Act, 1944. It is noticed that the partnership firm has already paid the duty alongwith interest and penalty to the extent of 25% of the duty, as per Section 11AC of the Act. Therefore, in the facts and circumstances of the case, imposition of separate penalty on the Partner of the firm (i.e. Appellant No.2) is not justified. The Hon'ble Gujarat High Court and the Tribunal, in series of decisions observed that after considering the facts of the case, penalty on the Partner and Partnership firm is not justified. Some of the decisions are as under:- (a) Shree Maruti Fabrics vs. CCE, Ahmedabad- 2014 (311) ELT 345 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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