TMI Blog2009 (7) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... unal (for short "the Tribunal"). By the impugned orders, the Tribunal has held that despite insertion of amended Section 4 of the Act w.e.f. 1st July, 2000 introducing the concept of "transaction value" in Section 4(1)(a) of the Act, the ratio of the decision of this Court in the case of Collector of Central Excise, Madras v. M/s. Indian Oxygen Ltd., (1988) 4 SCC 139, still holds the field. Therefore, the charges recovered by the assessees from their customers for providing them the containers and/or canisters etc. for supply of gases or other items etc., manufactured by them are not to be added to the price of the goods etc., for the purpose of determination of the assessable value under Section 4 of the Act, as substituted by Section 94 of Finance Act of 2000. 2. The factual position in regard to the nature and design of the containers, canisters etc., in each of the appeals being different, for the purpose of this order, we refrain from narrating the facts obtaining in each of the cases. However, in order to appreciate the controversy involved, a brief reference to the common and admitted factual background may be necessary. 3. The period of assessment involved in all the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r provisions of this Section, be deemed to be — (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale. 8. Section 4(1)(a), as it stands after the substitution with effect from 1-7-2000 provides as under : 4. Valuation of excisable goods for purposes of charging of duty of excise. — (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall — (a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of goods are not related and the price is the sole consideration for the sale, be the transaction value; 9. The expression "Transaction Value", for the purposes of Section 4, has been defined in Clause (d) of sub-Section (3) thereof and the said definition reads as under : (d) "transaction value" means the prices actually paid or payable for the goods, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excises and Salt Act satisfy this test. ..... ….. ….. As we have said, it was open to the Legislature to specify the measure for assessing the levy. The Legislature has done so. In both the old Section 4 and the new Section 4, the price charged by the manufacturer on a sale by him represents the measure. Price and sale are related concepts, and price has a definite connotation. The "value" of the excisable article has to be computed with reference to the price charged by the manufacturer, the computation being made in accordance with the terms of Section 4. A contention was raised for some of the assessees, that the measure was to be found by reading Section 3 with Section 4, thus drawing the ingredients of Section 3 into the exercise. We are unable to agree. We are concerned with Section 3(1), and we find nothing there which clothes the provision with a dual character, a charging provision as well as a provision defining the measure of the charge." (Emphasis supplied by us) 11. The principles enunciated in the case of Bombay Tyre (supra) were reaffirmed in Government of India Ors. v. Madras Rubber Factory Ltd. Ors., (1995) 4 SCC 349. 12. The new S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction value" thereof, as defined in Section 4(3)(d) of the Act is concerned, suffice it to say that the said provision would be subject to the charging provisions contained in Section 3 of the Act as also sub-section (1) of Section 4. The expressions "by reason of sale" or "in connection with the sale" contained in the definition of "transaction value" refer to such goods which is excisable to excise duty and not the one which is not so excisable. Section 3 of the Act being the charging section, the definition of "transaction value" must be read in the text and context thereof and not de hors the same." (Emphasis by us) 13. Thus, in Acer (supra), it has been held that Section 4 is a machinery provision and that the said machinery provision as well as the definition of "Transaction Value" contained therein would be subject to the charging provision of Section 3. 14. With utmost respect to the learned Judges constituting the Bench in Acer (supra), we feel that the interpretation of Sections 3 and 4 of the Act after the substitution of Section 4 is not in conformity with the scheme of the Act prima facie, for the reasons that (i) Section 3 is a charging Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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