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TMI Blog2016 (6) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... e to M/s KHDCL. The assessment was being done on the lines prescribed by the Hon'ble Supreme Court in the case of Ujagar Prints Ltd., i.e. on the basis of price of grey fabrics and the job charges payable thereon. The appellants were taking the price of grey fabrics as per "price declaration for excise purpose" made by M/s KHDCL. However, it was noticed by Revenue that in the delivery slips, the price declared accompanying the price circular was higher. Accordingly, the Revenue alleged that the appellants should have adopted the price declaration in the delivery slip as the price of grey fabrics and not declaration for the excise purpose by M/s KHDCL. Accordingly, a show-cause notice was issued to the appellant seeking to recover duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 15% on account of transit risk. This transit risk is in anticipation of loss due to short supply, quality defects etc. this amount is recoverable by KHDCL from the processor in case of mentioned losses/damages. I find that rule 6 of Valuation Rules, 2000 (so also the Circular dated 19.2.2002) seeks to add the money equivalent of the additional consideration flowing from the buyer to the assessee. In this case such additional consideration is the landed cost of grey fabrics. Now whether this component of transit risk has to be included for determining the landed cost of grey fabrics? I find that this transit risk is recoverable by KHDCL only if the fabrics supplied by KHDCL are lost or damaged etc. in all cases where no loss or damage i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to disbelieve the value furnished in the said price declaration." He argued that while this ground, which was an only ground raised in the show-cause notice, has been dropped, the Commissioner (Appeals) has gone on to confirm the demand by adopting grounds which were never invoked in the show-cause notice. He relied on the decision of the Hon'ble Supreme Court in the case of Sun Pharmaceuticals - 2015 (326) ELT 3 (SC) to assert that the Commissioner cannot go beyond the grounds raised in the show-cause notice. He also relied on decision of the Hon'ble Supreme Court in the case of Saci Allied Products Ltd. - 2005 (183) ELT 225 (SC) and Ballarpur Industries Ltd. - 2007 (215) ELT 489 (SC). 3. The learned AR relies on the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 1975 in the show cause notice, it would not be open to the Commissioner to invoke the said rule. In the case of Saci Allied Products Ltd. (supra), the Hon'ble Supreme Court has observed as under: - 33. In the case of Commissioner of Central Excise, Calcutta-II v. TISCO Ltd., 2004 (174) E.L.T. 307 (S.C.) (S.N. Variava & Dr. A.R. Lakshmanan, JJ.), it was held that in order to attract the first proviso to Section 4(1)(a) of the Act, there has to be an averment and the proof of the existence of a trade practice in that trade that the goods are being sold at different prices to different class of buyers. This Court, further, held that to claim benefit of proviso to Section 4(1)(a) of the Act, a trade practice must be averred and shown ..... X X X X Extracts X X X X X X X X Extracts X X X X
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