TMI Blog2023 (7) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... was denied by the learned Commissioner on the ground that no evidence of inclusion of excise duty in the price charged from the buyer has been produced by the Appellant before him - The benefit of the same is liable to be extended to the appellant. In the case of NATIONAL PLYWOOD IND. LTD. VERSUS COLLECTOR OF C. EX., SHILLONG [ 1998 (6) TMI 386 - CEGAT, CALCUTTA] the benefit of cum duty was extended to them and the price was considered to be cum-duty prices - the appellants are entitled to the benefit of cum-duty price. The demand of duty is accordingly to be re-quantified. The quantification of the demand needs to be re-worked out by the Ld. Commissioner. The penalties imposed on the appellants are also needs to be re-determined based upon the duty that has to be worked by the adjudicating authority. Since in the impugned matter quantification of demand itself was not properly done, we do not comment on the merit of the case and the same is kept open - matter remanded to Ld. Commissioner that first re-quantify the duty demand after considering the benefit of CENVAT credit and cum-duty price claimed by the appellant and pass afresh order. Appeals are allowed by way of remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 , confirmed the duty demand against the appellant along with interest thereon and besides this, imposed penalty of equal amount on the appellant under Section 11AC. Penalty of Rs. 2,00,000/- was also imposed on Shri Upendrabhai Chhanalal Shah under Rule 26 of the Central Excise Rules, 2002. Against this order of the Commissioner, this appeal has been filed. 2. Shri Paresh M. Dave, learned counsel appearing for the appellant submits that there is no finding in the impugned order that any processes were undertaken by the Appellant on the bought out parts and components, and there is also no finding in the impugned order that a complete kit was assembled and then sold to the buyers in completely assembled condition. The bought out parts and components were not subjected to any process/es and such bought out parts were packed in a box and sold without any processing, has not been found to be false or incorrect by the Commissioner. It is also accepted by the Commissioner that the buyer would assemble and install the CNG/LPG kit. Even otherwise, it is a matter of common knowledge that a CNG/LPG kit comes into existence only when the parts and components are fitted into a motor ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Vs. Commissioner of C.Ex., Jaipur -1999(112)ELT 305 (Tribunal) Bajaj Auto Ltd. Vs. Commr. Of C.Ex., Chennai-II- 2000(126)ELT 790 (Tri.) TI Diamond Chain Ltd. Vs. Commr. C.Ex., Chennai II- 2000(126)ELT 790 (Tribunal) Commissioner, Baroda Vs. India Medtroncis Pvt. Ltd. 2015(323) ELT 728 (Guj.) India Medtronics Pvt. Ltd. Vs. Commissioner, Baroda -2006(199)ELT 347 (Tri. Mumbai) Eureka Forbes Ltd. Vs. Commissioner, Coimbatore 2001 (138)ELT 1124 (Tri- Chennai) Commissioner, Daman Vs. Pilot Plastics 2009 (234)ELT 471 (Tri. Ahmd.) Commissioner of Central Excise Vs. Rafique Malik 2.3 He also argued that the Appellant company has paid excise duty on similar activity involving sales to Motor vehicles manufactures like Hindustan Motors, General Motors, Maruti Suzuki etc., because of the Commercial exigency inasmuch as such OEMs insisted upon payment of excise duty so that they could avail Cenvat credit; but the act of paying duty for similar sales made to OEMs cannot be considered to be an evidence of the business activities constituting manufacture , resulting in manufacture of a distinct goods. The conduct of the assessee could not serve as ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le CENVAT credit at Rs. 1,64,68,644/-. However on 25.03.2013 the Deputy Commissioner issued another letter rectifying the error of mentioning the incorrect amount of admissible CENVAT credit in previous letter dated 14.03.2013 and confirmed that the admissible CENVAT Credit was Rs. 1,70,17,818/- for the period. We further observed that in the present matter appellant also claimed the benefit of cum-duty price which was denied by the learned Commissioner on the ground that no evidence of inclusion of excise duty in the price charged from the buyer has been produced by the Appellant before him. However we find that the benefit of the same is liable to be extended to the appellant. In the case of National Plywood Industries Ltd.-[2000 (125) E.L.T. 986 (Tribunal) Supra the benefit of cum duty was extended to them and the price was considered to be cum-duty prices. The relevant observations made in para 8 of the said order are being reproduced below:- 8. The appellants had pleaded that in the facts and circumstances of the case the benefit of Modvat credit should be extended in their favour if the demand of duty is to be enforced and that the procedural requirements could not be fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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