TMI Blog2023 (12) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... MARUTI UDYOG LTD. [ 2002 (2) TMI 101 - SUPREME COURT ]. HELD THAT:- This Court finds that in the decision of Maruti Udyog Ltd, that the cum duty price realised by the assesse was entire price inclusive of Excise duty. Therefore by not separately charging nor intending to charge assesse had taken upon itself to discharge the liability to pay taxes on the good sold, therefore cum duty benefit will be available to it, was the decision of the Hon ble Court. As against this, in the matter of Amrit Agro Industries Ltd Vs. Commr of C.Ex Ghaziabad cited (supra), the Apex Court held that in peculiar circumstances of matter when classification of roasted Peanuts was changed from chapter 21 to chapter 20 of the C.Ex. and an exemption granted of Notification No. 4/97 was being availed earlier and therefore duty charged was nil in effect. And when with change of classification to chapter 20 some duty became payable without the exempted rate (nil), same also should be considered as price inclusive of tax. Therefore further benefit was not required to be given to the assesse, consequent upon change of classification of the goods. Thus, it is apparent that there is no conflict betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the impugned period, but had need a taken any registration or were filing any returns at the time of search. In short these services were provided clandestinely. At this stage, appellants are before this court mainly on the point of denial of cum duty benefit, while making its calculation by the department and consequently they also want interest that should be subjected to demand of duty finally calculated on the basis of final demand, in case the appeal is accepted. 3.1 Learned AR pointed out that, learned Commissioner (Appeals), while denying the benefit has relied upon the decision of Hon ble Supreme Court in the case of Amrit Agro Industries Ltd. reported at 2007 (210) ELT 183 (S.C), which Learned AR forcefully relies upon such decision to justify the decision of Commissioner (Appeals). Since none appeared, the court decided to benefit from the services of Shri Sudhanshu Bissa, Advocated who was present in court and agreed to both handle the brief on one day s notice and provide necessary material. 3.2 The issue which has to be decided by this court is whether there is any conflict between the decision of Hon ble Supreme Court as relied upon reported by the Learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case, has to be considered as cum-duty price. Essentially these civil appeals are quantum appeals. It is the case of the Department in the present civil appeals that all throughout the years the assessee has that roasted peanuts came under Chapter 21 and, consequently, the said item stood exempted from payment of duty under above exemption notification dated 1-3-1997. Therefore, according to the Department, all these years the assesse had cleared the goods on the footing that roasted peanuts were exempted. They have filed the requisite declarations/classifications on that basis According to the Department, since the assessee had cleared roasted peanuts without payment of duty during the relevant ears, the quantum of duty is required to be recomputed. According to the Department, in the normal case where the assessee does not seek exemption or in cases where goods are not exempted, the of duty has got to be recomputed on the oasis of cumduty price According to the Department, the reasoning behind recomputation based on cum-duty price is that ordinarily the basis for levy of excise duty is the normal price. That normal price includes the duty element Such price is called cum-dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication in the facts of the present case. In the case of Asstt. Collector of Central Excise v. Bata India Ltd. reported in 1996 (84) ELT 194 this Court held that under section 4(4)(d)(ii) of Central Excises and Salt Act, 1994 the normal wholesale price is the cum-duty price which the wholeseller has to pay to the manufacturerassessee. The cost of production, estimated profit and taxes on manufacture and sale of goods are usually included in the wholesale price. Because the wholesale price is usually the cum-duty price, the above section 4(4)(d)) lays down that the value will not include duty of excise, sales tax and other taxes, if any. payable on the goods. It was further held that if, however, a manufacturer includes in the wholesale price any amount by way of tax, even when no such tax is payable, then he is really including something in the price which is not payable as duty. He is really increasing the profit element in another guise and in such a case there cannot be any question of deduction of duty from the wholesale price because as a matter of fact, no duty has actually been included in the wholesale price. It was further held that the manufacturer has to calculate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be excluded. The Tribunal has, therefore, rightly proceeded on the basis that the amount realised by the respondent from the sale of scrap has to be regarded as a normal wholesale price and in determining the value on which excise duty is payable the element of excise duty which must be regarded as having been incorporated in the sale price, must be excluded. There is nothing to show that once the demand was raised by the Department, the respondent sought to recover the same from the purchaser of scrap. The facts indicate that after the sale transaction was completed, the purchaser was under no obligation to pay any extra amount to the seller, namely, the respondent. In such a transaction, it is the seller who takes on the obligation of paying all taxes on the goods sold and in such a case the said taxes on the goods sold are to be deducted under Section 4(4)(d)(ii) and this is precisely what has been directed by the Tribunal. There is also nothing to show that the sale price was not cum-duty. 14. In our view, the Tribunal has rightly remanded the case to re-determine the duty payable keeping in mind the provisions of Section 4(4)(d)(ii). From the foregoing, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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