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TMI Blog2017 (5) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, whereunder subjects of classification and admissibility of benefit of Notification No.3/2005-CE, dt.24.02.2005 for the subject goods viz. Soft Drink Concentrates are under dispute. The total period involved is from April 2005 to February 2006. 2. Brief facts of the case are that:- i) The appellant M/s Pioma Industries were manufacturing unbranded Soft Drink Concentrates. They were classifying the said goods prior to April 2005 under six digit classification of Central Excise Tariff under Heading 2108.90 and were having the benefit of Nil rate of duty as the tariff rate was Nil. ii) After the introduction of eight digit classification for Central Excise, the appellant-assessee classified the subject goods under Tariff Sub Heading 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... headings - one for 'Sharbat' which is covered by Heading 2106.9011 and second one is Other category which is covered by Heading 2106.9019. 4.1 Thus, there are only two choices for classifying the Soft Drink Concentrates which could be either 'Sharbat' or could be 'Others'. In the light of the descriptions and the wordings of the Central Excise Tariff, it is clear that there cannot be two opinions regarding the classification of the item 'Soft Drink Concentrates (unbranded)' and, therefore, its correct classification is 2106.9019 only. On the other hand, the assessee is pleading the classification of their goods under Central Excise Tariff Sub Heading 2106.9099 for which there is no basis as per the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hood of further recovery from the past consumers of any duty of Central Excise, if levied and confirmed against the appellant now. Hon'ble Supreme Court in the case of CCE Delhi Vs Maruti Udyog Ltd - 2002 (141) ELT 3 (SC) has held that the sale price realized by an assessee should be regarded as the price inclusive of excise duty as the purchaser has no obligation to pay any amount in excess of what has already been paid as the price for the goods purchased. In this regard, the Hon'ble Supreme Court in the said decision observes as under:- "6. It will be useful here to refer to the observations of this Court in Hindustan Sugar Mills v. State of Rajasthan & Others, 1978 (4) SCC 271, at page 280, as follows : "Take for example, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price inclusive of excise duty because it is the respondent who has, by necessary implication, taken on the liability to pay all taxes on the goods sold and has not sought to realise any sum in addition to the price obtained by it from the purchaser. The purchaser was under no obligation to pay any amount in excess of what had already been paid as the price of the scrap." In the light of above discussion and the observations of Hon'ble Apex Court, the Appellant is entitled to cum duty benefit for the sales made during the period under dispute and the liability of duty of Central Excise against them is to be computed accordingly, for which the matter is being remanded to the Adjudicating authority viz. jurisdictional Commissioner of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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