TMI Blog2018 (11) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... goods cleared under warranty/replacement clause. Appeal allowed - decided in favor of appellant. - E/50/2008-DB - Final Order No. 21719/2018 - Dated:- 12-11-2018 - SHRI S.S GARG, JUDICIAL MEMBER And SHRI P. ANJANI KUMAR, JUDICIAL TECHNICAL Mr. Madhu N. Rao Advocate For the Appellant Dr. J. Harish, AR For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dated 31.10.2007 passed by the Commissioner (A) whereby the Commissioner (A) has rejected the appeal of the appellant. 2. Briefly the facts of the present case are that the appellants are engaged in the manufacture of earth moving equipment, earth coaches, trailers and defence aggregators at their factories sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded the cost of the warranty in the transaction at the initial removal. In fact, the warranty cost of 2.5% of the factory cost was already included in the original value of the equipment at the time of removal of the original equipment. He also submitted that the department has also not disputed that appellant has not paid excise duty on the total amount charged to the customer including element of 2.5% warranty cost. Excise duty charged including the warranty cost/replacement cost at the time of removal of the original equipment and as and when the replacement is sought for, the goods are removed based on the customers requirement within the warranty period. Learned counsel also referred to Section 4(1)(a) read with Section 4(3)(d) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of removal of warranty goods. 6. After considering the submissions of both the parties and perusal of the material on record, we find that the only issue to be decided in the present appeal is whether it is correct on the part of the department to demand excise duty second time for the clearance of the goods under warranty/replacement, during warranty period and consequently, denial of refund of duty paid under protest for clearance of warranty goods is justified or not. Further, we find that the Department has not disputed that the goods were cleared under warranty replacement. We also find that the department has not disputed that the warranty cost of 2.5% of the factory cost was already included in the original value of the equipment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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