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2017 (5) TMI 756 - CESTAT AHMEDABAD

2017 (5) TMI 756 - CESTAT AHMEDABAD - TMI - Classification of goods - Soft Drink Concentrates - admissibility of benefit of N/N. 3/2005-CE, dt.24.02.2005 - For Soft Drink Concentrates , there are only two sub headings one for Sharbat which is covered by Heading 2106.9011 and second one is Other category which is covered by Heading 2106.9019 - under what sub-heading the Soft Drink Concentrates will be classified? - Held that: - there cannot be two opinions regarding the classification of the item .....

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eld 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 price inclusive of excise duty as the purchaser has no obligation to pay any amount in excess of what h .....

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5-5-2017 - Dr. D.M. Misra, Member (Judicial) And Mr. Ashok K. Arya, Member (Technical) For Appellant : Shri Uday Joshi, Advocate For Respondent : Shri L. Patra, A.R. ORDER Per Ashok K. Arya 1. MAs (ROA) allowed for these appeals, which were earlier dismissed for non-prosecution, and are now being taken up for disposal. 1.1 M/s Pioma Industries has filed these appeals against the respective Orders, whereunder subjects of classification and admissibility of benefit of Notification No.3/2005-CE, dt .....

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introduction of eight digit classification for Central Excise, the appellant-assessee classified the subject goods under Tariff 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/ .....

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sented by the learned counsels, Shri Uday Joshi for the appellant and Shri L. Patra for the Revenue. The subject matter being common in these appeals, these are being decided by this common order. 4. After perusal of the facts of the case and the submissions of both the sides, it appears that the goods deserve classification under Central Excise Tariff sub-heading No.2106.9019 as Others , which specifically covers Soft Drink Concentrates other than Sharbat , which is one of the sub entries of th .....

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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 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 with .....

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ion pleaded by them is not accepted, they be given the benefit of MODVAT/CENVAT Credit for the inputs/raw materials used for manufacturing their product along with the benefit of cum-duty , when the demand is computed against them. 6.1 In the light of Indirect Tax Scheme/Structures of Union of India, where duty of Central Excise is levied on manufacturing and set off for the taxes paid on the inputs (raw materials/services) used for manufacturing a product is generally allowed (unless there is c .....

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eld 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 : Tak .....

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be an addition to the coffers of the dealer, as it would go to re-imburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer. It is only as part of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or otherwi .....

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