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M/s Tekni Engineering Pvt. Ltd. Versus Commissioner, C. Ex. & S. Tax, Ahmedabad

2016 (6) TMI 539 - CESTAT AHMEDABAD

Denial of cum-duty-price benefit in the computation of duty liability - non-payment of Central Excise duty by issuing invoices in the name of a fictitious firm - 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? - Held that:- 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 Meghdoot Gramud .....

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pondent: 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 Central Excise Tariff Act, 1985. On the basis of intelligence and further investigation, demand notice was issued to the Appellant, alleging non-payment of .....

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resent Appeal. 3. The learned Advocate Shri Paritosh Gupta for the Appellant submitted that while denying the benefit of cum-duty price, the Commissioner (Appeals) has erroneously observed that the dummy unit of the Appellant had not shown the price of the goods on the invoices issued by them. It is his contention that the Annexure to the Show Cause Notice lists out the invoices/bills issued by M/s Tekni Enterprises, on which duty has been demanded. Further, he has argued that even if the allega .....

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ings 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 estab .....

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ble even in cases involving removal of goods clandestinely without payment of duty. It is their contention that after insertion of Explanation-II to Section 4 of Central Excise Act, 1944, the price charged to the Customer is deemed to be cum-duty-price. 7. We find that this Tribunal in the aforesaid case while analyzing the provisions old Sec. 4 prior to 01.07.2000, and taking note of amendment to new Section 4, w.e.f. 14.05.2003, observed as: 5.1 Sub-section (4)(d)(ii) of old Section, as it sto .....

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sale price realised by an assessee is to be regarded entire price inclusive of 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 as .....

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-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, .....

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