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2016 (1) TMI 1183 - CESTAT MUMBAI

2016 (1) TMI 1183 - CESTAT MUMBAI - 2016 (335) E.L.T. 529 (Tri. - Mumbai) - Without prejudice to the other submission made in the appeals, it is submitted that the applicant has not recovered and duty from the customers. Therefore, the sale price of the resultant materials should be treated as cum duty price - Explanation to Section 4 of the Central Excise Act - Circular DOF No. 384/1/2003-TRU dated 28.2.2003 - Held that: - It is pertinent to note that the Hon'ble Supreme Court in the case of CC .....

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ground the Tribunal could not have allowed the appeal. - We find that the judgment of the Hon'ble Supreme Court cited above is applicable in the facts of the present case and in our considered opinion, the new ground which the applicant is seeking to raise cannot be raised at this stage as the ground is not purely legal in nature. Consequently, we do not find any merit in the applications moved by the applicant/appellant and we dismiss the same. - Applications E/MA (Ors)/95264 & 95265/15-Mum .....

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t set forth in the appeal. The additional ground which the applicant wants to insert is as under:- "Without prejudice to the other submission made in the appeals, it is submitted that the applicant has not recovered and duty from the customers. Therefore, the sale price of the resultant materials should be treated as cum duty price". In support of this additional ground, the applicant referred to the Explanation to Section 4 of the Central Excise Act as well as the definition of transa .....

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orted in 2008 (223) ELT 295 (T) (v) GOI vs. Madras Rubber Factory Ltd. reported in 1995 (77) ELT 433 (SC). He further submitted that the duty calculation should be made considering invoice value as cum duty price and the demand confirmed should be recalculated by considering invoice value as cum duty price. 3. On the other hand, the learned AR has filed written submissions opposing the additional grounds on the following grounds:- "(i) As per the Hon'ble Supreme Court judgment in the ca .....

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9;ble Allahabad High Court in the case of Special Tools (P) Ltd. Vs Commissioner of Central Excise, Ghaziabad [2015 (324) ELT 64 (All.)] no additional grounds raised for the first time in second round litigation is allowed. As can be seen from the facts of the case that the present grounds proposed for inclusion in the appeals have never been raised by the appellants at any stage. These grounds were never raised before the original authority; the first appellate authority (in the original or in .....

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