TMI Blog2016 (11) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... ed entirely on the amounts of debit notes so raised; cum-duty benefit needs to be extended to them. For limited purpose of requantifying the demand of duty for the post July 2000 by extending the benefit cum-duty, we remand this matter to the lower authorities to ascertain correct quantification of demand of duty along with interest thereof. As regards the penalty, we find that the issue is of interpretation of the provisions of Section 4 hence the question of visiting the respondent with penalty does not arise. The appeal is disposed of partly in favour of the assessee and partly in favour of the Revenue. - Appeal No. E/3786/05 - Order No. A/90751/16/EB - Dated:- 5-10-2016 - Mr. M.V. Ravindran, Member (Judicial) and Mr. C.J. Math ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DVR. would submit that the impugned order is incorrect inasmuch the respondent has used excessive material in the manufacture of transmission towers which has increased the weight of the towers and hence the cost and value goes up for which debit notes are raised. It is his submission that though the contract value is fixed the assessee respondent has in the contract recorded the final sum shall be determined in accordance with the terms and conditions of the contract. Hence the provisions of Section 4 of Central Excise Act, 1944 will apply. He would read the definition of transaction value and submit that the price actually paid or payable for the goods when sold had to be incorporated in the favour of the department as in the case in hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f valuation. Hence the definition of transaction value when read clearly indicates that the phrase actually paid or payable is the situation wherein the customer agrees to pay the said amount thereby actually claimed is correct. In the absence of actionable claim the judgement of Apex Court in the case of Purolator India Ltd - 2015 (323) ELT 227 (S.C.) will cover the issue their favour which holds that the expression actually paid or payable for the goods, when sold means that whatever is agreed to as the price for the goods forms the price of the goods, whether such price has been paid or has been paid in part, or has not been paid at all. It is his submission that the invoices raised has to be read with the agreement and does not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt period it mandated determination of normal price. In the case in hand it is undisputed that the clearance made by the respondent during the period were contracted price which was normal price as per the Section 4(1)(b) therefore no addition was required even if for the period April 1999 to 30 th June 2000 a debit note is issued for the excess material consumed. 6.2 As regards the assessable value post July 2000, we find that provisions of Section 4 has been amended to bring in the concept of transaction value. The definition of transaction value provided in Section 4(3)(d) of the Central Excise Act, 1944 reads as under:- Section 4 (3) (d) transaction value means the price actually paid or payable for the goods, when sold, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee in pursuance to the escalation clause despite increase in value, Central Excise duty is not payable. The same analogy will apply in the case in hand. In view of this we hold that the respondent is liable to discharge duty on the debit notes raised by them for the period post July 2000. 6.4 Further we agree with the contention raised by the learned Counsel that the duty liability cannot be demanded entirely on the amounts of debit notes so raised; cum-duty benefit needs to be extended to them. For limited purpose of requantifying the demand of duty for the post July 2000 by extending the benefit cum-duty, we remand this matter to the lower authorities to ascertain correct quantification of demand of duty along with interest there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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