TMI Blog2016 (6) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the cum-duty-price benefit in computation of demand to the Appellant. In the result, the impugned order is set aside and the Appeal is allowed in favour of assessee - Appeal No. E/264/2008-DB - Order No. A/10333/2016 - Dated:- 12-4-2016 - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MR. P.M. SALEEM, MEMBER (TECHNICAL) For the Appellant: Shri Paritosh Gupta, Advocate For the Respondent: Shri L. Patra, A.R. ORDER PER: DR. D.M. MISRA This Appeal is filed against OIA No.9/2008(Ahd-I), dt.31.01.2008, passed by Commissioner (Appeals), C.Ex. S.Tax, Ahmedabad. 2. Briefly stated, the facts of the case are that the Appellants are engaged in the manufacture of Cooling Towers and parts thereof falling under Chapter 84 of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Meghdoot Gramoudyog Sewa Sansthan Vs CCE Noida - 2014 (312) ELT 699 (Tri-Del.) 4. The learned Authorised Representative for the Revenue reiterates the findings of the learned Commissioner (Appeals). 5. Heard both the sides and perused the records. 6. The issue for consideration is, whether the Appellants are eligible to cum-duty price benefit in computation of demand for clearance made through their another Unit viz. M/s Tekni Enterprises. We find that the learned Commissioner (Appeals) while denying the said benefit observed that it is a case of clandestine removal and also the Appellant had failed to place necessary sales bills/invoices to establish that the price at which the goods were sold had ultimately been realized from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f excise duty when the assesee has not sought to realise any sum in addition to the price obtained from the buyer and the buyer is under no obligation to pay any amount in excess of what had already paid as the price of the goods and in the case of Amrit Agro Industries Ltd. v. CCE, Ghaziabad holding that one cannot go by general implication that wholesale price would always mean cum-duty price, particularly when the assessee had cleared the goods during the relevant years by availing duty exemption and that unless it is shown by the assessee that the price of the goods includes excise duty payable by him, there would be no question of exclusion of duty element from the sale price, are in respect of Section 4, as it stood during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(1) and hence the part of the impugned order disallowing the abatement of Central Excise duty from the price charged is not correct and the matter has to be remanded to the adjudicating authority for re-computing the duty demand by treating the price charged by the Appellant as cum-duty price and determining assessable value after abating the Central Excise duty. 8. The Appellant s case, in our view, fall within the Explanation-II to Section 4 of Central Excise Act, 1944 and covered by the aforesaid judgment of the Tribunal. Accordingly, the learned Commissioner (Appeals|) has erred in denying the cum-duty-price benefit in computation of demand to the Appellant. In the result, the impugned order is set aside and 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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