TMI Blog2017 (5) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... of their goods under Central Excise Tariff Sub Heading 2106.9099 for which there is no basis as per the material given by them especially when there is specific entry for Soft Drink Concentrates in the Tariff as mentioned above. Therefore, the appellant's pleading for the said classification is rejected. Benefit of N/N. 3/2005-CE, dt.24.02.2005 - Held that: - the goods have already been sold to the customers and there is no likelihood 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 (2) TMI 101 - Supreme Court] has held that the sale price realized by an assessee should be regarded as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 T ariff Sub Heading 21.06.9099 whereas the Department decided to classify the goods under Central Excise Tariff Sub Heading No.2106.9019. iii) The assessee-appellant after classifying the subject goods under Tariff Heading 2106.9099, is claiming the benefit of Notification No.3/2005-CE for the said goods. However, the Department's stand is that the benefit of Notification No.3/2005-CE (supra) is not available to the subject goods as the goods deserve classification under Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 given by them especially when there is specific entry for 'Soft Drink Concentrates' in the Tariff as mentioned above. Therefore, the appellant's pleading for the said classification is rejected as without any merit. 5. Another plea of the assessee-appellant is for admissibility of the benefit of Notification No.3/2005-CE, dt.24.02.2005 (Entry No.11) for the subject goods. However, the entry No.11 of the said Notification inter alia, me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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, excise duty payable by a dealer who is a manufacturer. When he sells goods manufactured by him, he always passes on the excise duty to the purchaser. Ordinarily it is not shown as a separate item in the bill, but it is included in the price charged by him. The 'sale price' in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'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 Central Excise. It is again made clear that as discussed earlier, the appellant is entitled to the benefit of MODVAT/CENVAT Credit when they make payment of their liability of Central Excise duty to the Department. 7. In the result, in the light of aforesaid findings, the impugned order is modified to above effect and the matter is accordingly remanded to the Adjudicating authority viz. Commissioner Incharge for re-quantification ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
