TMI Blog2018 (9) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants. The point raised by the appellants is valid for arriving at the duty liability. The matter needs to go back to the Original Authority - penalties are set aside - appeals are allowed by way of remand with a direction to the Original Authority to quantify the duty considering the reasonable & applicable deductions on account of Excise Duty/VAT/CST etc. paid by M/s. TML and by the appellants. - E/1002/2009-DB, E/1029/2009-DB - Final Order No. 21326-21327/2018 - Dated:- 6-9-2018 - HON'BLE SHRI S.S GARG, JUDICIAL MEMBER And HON BLE SHRI P.ANJANI KUMAR, TECHNICAL MEMBER Mr. G.Shivdas, Advocate For the Appellant Mr. K.Murali, AR For the Respondent ORDER Per : P. Anjani Kumar M/s. Hyva India Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.1,45,22,130/- 4. April 2008 to September 2008 dated 02.02.2009 Rs.1,36,28,209/- 2.2 The appellants submitted that Rule 10A was not applicable as the goods are not manufactured on job-works basis; the chassis was sold by M/s. TML for a price and valuation in terms of Section 4(1)(a) read with Rule 6 of the Central Excise Valuation Rules, 2000 is correct and the imposition of penalty was not sustainable. 2.3 The SCN at serial no. 1 was adjudicated by Additional Commissioner vide Order No. 31/2008 dated 30.08.2008 and was upheld by the Commissioner (Appeals) vide Order No. 83/2009 dated 05.08.2009. The SCNs serial no. 2,3,4 were adjudicated by Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Co. Ltd. Anr. Vs. UOI- 1981 (8) ELT 389 (Del.). (ii) UOI Vs. Poona Bottling Co. Ltd.- 2003(154) ELT A240 (SC). (iii) Spencer and Co. Ltd. Vs. ACCE- 1983 (14) ELT 2098 (Mad.). (iv) Steel City Beverages Pvt. Ltd. Vs. UOI- 1986 (23) ELT 147 (Pat.). (v) Parle Beverages (P) Ltd. Vs. UOI- 1982 (10) ELT 142 (Bom.). (vi) Goa Bottling Company (P) Ltd. and Others Vs. UOI 1987 (28) ELT 215 (Bom.). 3.2 By the ratio of the above decisions to be follows that manufacture on behalf of would mean that the job-worker is either an employee of the supplier of raw materials or is an agent of the latter. In the instant case, the appellants are not agents of the principal manufacturer therefore the conditions enshrined in Rule 10A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the Tribunal in their case 2015 (327) ELT 41 (Bom). In view of the same, the learned counsel submitted that penalties may be set aside and matter may be remanded to the Original Authority for proper calculation of the duty giving relevance to taxes paid by them and M/s. TML. 3.5 The learned counsel submitted that whereas the duty confirmed by the Additional Commissioner (in respect of SCN at serial no. 1) and by Commissioner (in respect of SCN at serial no. 2,3,4) was ₹ 21,01,288/- and ₹ 3,88,31,569 respectively and actual duty payable comes to ₹ 14,39,693/-(in respect of serial no.1) and ₹ 1,14,98,881/- (in respect of SCN at serial no. 2,3,4). Department have only excluded the element of excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. We find that the facts of the case submitted by the learned DR are not same and as such cannot be applied. What was discussed in the Grob Tea Company Ltd. (Supra) case was challenge to the calculations of the Assistant Collector without presenting any data. In the instant case, the appellants have submitted that whereas the Department only excluded the element of excise duty from the assessable value, for quantification of demand, appellants submit that the transaction value of M/s. TML is to be adopted after deducting in addition to the excise duty Sales Tax/VAT paid by M/s. TML and CST paid by the appellants. Therefore, we find that the point raised by the appellants is valid for arriving at the duty liability. As such, the matter nee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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