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TMI Blog2009 (7) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... cing 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such charges recovered by the assessees from the buyers for being provided with cylinders, tonners, canisters etc., are to be taken into consideration for determination of value of excisable goods in terms of Section 4 of the Act as substituted for purposes of charging of duty of excise on the excisable goods. 6. Section 3 of the Act inter alia provides that there shall be levied and collected in such manner as may be prescribed, a duty of excise to be called the Central Value Added Tax (CENVAT) on all excisable goods which are produced or manufactured in India as, and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985. Section 4 of the Act provides for valuation of excisable goods for the purposes of ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said definition reads as under : (d) "transaction value" means the prices actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. 10. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the purpose of determining the measure of the levy. Any standard which maintains a nexus with the essential character of the levy can be regarded as a valid basis for assessing the measure of the levy. In our opinion, the original Section 4 and the new Section 4 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 pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Only because the expressions "by reason of, or in connection with the sale" have been used in the definition of "Transaction Value", the same by itself would not take away the rigours of Sub-section (1) of Section 4 as also the requirement of charging section as contained in Section 3. It must be borne in mind that central excise duty cannot be equated with sales tax. They have different connotations and apply in different situations. Central excise duty is chargeable on the excisable goods and not on the goods which are not excisable. Thus, a "goods" which is not excisable if transplanted into a goods which is excisable would not together make the same excisable goods so as to make the assessee liable to pay excise duty on the combined v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 Section providing for levy of excise duty on excisable goods, whereas Section 4 provide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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