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2016 (8) TMI 1107 - CESTAT NEW DELHI

2016 (8) TMI 1107 - CESTAT NEW DELHI - TMI - Whether the entire consideration received by the manufacturing unit in respect of goods cleared clandestinely has to be treated as cum-duty price and the duty required to be paid by them needs to be re-quantified - Clendestine removal - Held that:- in view of the decision of Hon'ble supreme Court in the case of Amrit Agro Industries Ltd. vs. CCE [2007 (3) TMI 14 - SUPREME COURT OF INDIA], the department itself accepted that the normal price includes t .....

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ed upon the proprietary unit, the imposition of separate penalty upon the Proprietor is not called for - Held that:- by following the decision of Tribunal in the case of Royal Springs vs. CCE, New Delhi-I [2002 (4) TMI 547 - CEGAT, NEW DELHI], the penalty imposed upon the Prop. was set-aside, the said decision stands confirmed by the Hon'ble Supreme Court in Commissioner vs. Royal Springs [2002 (10) TMI 788 - SUPREME COURT]. The issue is well settled and does not require the support of any furth .....

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elhi vide which he has confirmed demand of duty of ₹ 68,14,631/- against the appellant, who is engaged in the manufacture of Injection Moulding Machine, on the findings and allegations of clandestine removal. In addition interest stands confirmed along with imposition of penalty of identical amount on M/s Vishavakarma Hydraulic Works. Further penalty of ₹ 25 lakhs stands imposed on Sh. Kewal Krishan Ajilnal, Prop. of M/s Vishavakarma Hydraulic Works. 2. Ld. Advocate Sh. R. K. Philips .....

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t stands penalised, no separate penalty can be imposed upon the Proprietor. 3. After hearing both the sides duly represented by Sh. R. K. Philips, Id. Advocate and Sh. G. R. Singh, Id. DR we find that it requires to be decided as to whether the entire consideration received by the manufacturing unit in respect of goods cleared clandestinely has to be treated as cum-duty price and the duty required to be paid by them needs to be re-quantified. 4. We find That the issue is no more res-integra and .....

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cision of the Hon'ble Supreme Court in the case of CCE vs. Dugar Tetenal India Limited / 2008 (224) ELT 180 (SC)], Wherein the larger Bench of the Tribunal in the case of Srichakra Ltd. vs. CCE -1999 (108) ELT 361 (Tri.) was accepted and it was held that selling price being cum-duty, duty element is deductable to determine the assessable value of the goods and the duty payable is required to be re-determined. The Tribunal in the case of Kobe Suspension Co. Pvt. Ltd. vs. CCE, Delhi-IV - 2008 .....

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on, in para 12 of their judgment, it stands recorded that the department itself accepted that the normal price includes the duty element and as such the entire consideration has to be considered as inclusive of excise duty. However, the principal laid-down in the case of Maruti Udyog Limited was not followed by observing that in the case of M/s Amrit Agro the assessee was clearing its final product by claiming exemption notification which leads to the clear fact that the consideration being rece .....

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uted. According to the Department, in the normal case where the assessee does not seek exemption or in cases where goods are not exempted, the quantum of duty has got to be recomputed on the basis of cum-duty price . According to the Department, the reasoning behind recomputation based on cum-duty price is that ordinarily the basis for levy of excise duty is the normal price. That normal price includes the duty element. Such price is called cum-duty price. Therefore, in such cases, when the quan .....

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sought to realise any some in addition to the price obtained by it from the buyer. In the said case, it has been held that when the assessee has charged cum-duty price, then in arriving at the assessable value of the goods, the element of duty payable has to be excluded. To this extent, there is no difficulty. However, in the present case, the Department contends that there is no question of implication when throughout the relevant years the assessee has been clearing the goods on the basis of t .....

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