TMI Blog2023 (4) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... tially the appellant cleared the goods without payment of duty by availing the Exemption under Notification 89/95 dated 18/05/95 - From the Circular No.749/65/2003-CX dated 26.09.2003 and the Explanation to Section 4, it is clear that when the duty is not charged separately, the price collected is deemed to be cum-duty price. The Appellant has already adopted the value realized as cum-duty price and paid the duty accordingly. Thus, the duty paid by the Appellant is in order. The demand raised on the Appellant is not sustainable and the impugned order confirming the demand is liable to be set aside - Appeal allowed. - Excise Appeal No.182 of 2011 - FINAL ORDER NO. 75237/2023 - Dated:- 17-4-2023 - SHRI P. K. CHOUDHARY, MEMBER (JUDICIAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cum-duty price for the goods cleared. There is no dispute regarding liability of Central Excise duty. The Appellant has initially cleared the goods without payment of duty by availing the benefit of Notification No. 89/1995 dated 18.05.1995. Subsequently on the advice of the Department, they agreed and paid the duty by treating the value as cum-duty price. The Department has contested the adoption of cum-duty price and demanded differential duty. 3. The Appellant stated that the issue has already been settled when Section 4 was amended and an Explanation to Section 4 was inserted w.e.f. 14.05.2003 . The Explanation inserted is reproduced below : [ Explanation . For the removal of doubts, it is hereby declared that the price-cum-du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 3 (S.C.)]. Vide the said judgment, appeals filed by the Department were dismissed by the Hon ble Supreme Court, upholding that the sale price realised by the assessee is to be regarded as inclusive of excise duty and therefore, in arriving at the excisable value of the goods, the element of duty which is payable is to be excluded. In this regard, it is to be informed that against the above said judgments of the Hon ble Supreme Court, Review Petitions have been filed by the Department and the Hon ble Supreme Court has ordered for issue of notice. It is therefore, requested that the cases pending for adjudication and remanded on this issue may be kept pending in the Call Book till the decision of the Hon ble Supreme Court on the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds already sold to the customer, it is an accepted principle that the assessee would be entitled to cum-duty benefit as the duty component now cannot be recovered separately from the customers. In other words, the sale price of the goods is to be treated as inclusive of duty component. The Explanation to Section 4(1) of Central Excise Act makes it clear. We, therefore, hold that the appellants are entitled to cum-duty benefit for the subject goods already sold. 7. We find that the above decision cited by the Appellant is squarely applicable in this case. Accordingly, we hold that the demand raised on the Appellant is not sustainable and the impugned order confirming the demand is liable to be set aside. In view of the above discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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