TMI Blog2003 (4) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 8/97, dt. 1-3-1997 for exemption from basic excise duty as well as benefit of Notification No. 55/91, dt. 25-7-1991 for exemption from the Additional Duties of Excise (Textiles and Textile Articles). He fairly concedes that the decision of the Punjab and Haryana High Court in the case of Vardhman Polytex Limited v. U.O.I. - 2001 (135) E.L.T. 17 is against the appellants. However, he states that this decision has been appealed against to the Supreme Court. He further submits that the demand has been issued in pursuance of Board's Circular No. 554/50/2000-CX., dt. 19-10-2000 which is applicable only prospectively and not before its issue. He also submits that the impugned order does not take account of the value as the cum-du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Dy. Commissioner, he contends that such jurisdiction is available under the statute enacted by the Parliament which is not affected by instructions issued by the Board. He, therefore, submits that the appeal should be dismissed. 4.The learned Advocate for the appellants in his rejoinder states that issue of cum-duty-price is a point of law and hence the same can be raised at any stage. He cites the following case laws in this regard. (1) 1998 (104) E.L.T. 678 (2) 1999 (108) E.L.T. 82 (3) 1991 (51) E.L.T. 631. As regards the jurisdiction issue, he relies on the decision of Supreme Court in the case of Dhiren Chemicals - 2002 (139) E.L.T. 3 (S.C.) in support of his contention. 5.After hearing rival submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich should have been done by the Joint Commissioner. He also cites the decision of the Apex Court in the case of Dhiren Chemicals to argue that the field officers are bound by the instructions issued by the Board. 6.We find that the said Circular of 27-2-1997 clearly recognizes the competence of the Dy. Commissioner to issue notice, determine the duty due and adjudicate the cases of confiscation and penalty without any limit under the statutory provisions contained in the Central Excise Act, 1944 and delegations made thereunder in 1947. There does not appear to be any dispute in this regard. Section 37A of the Act provides that the Central Government, by notification in the Official Gazette and subject to specified conditions, may delegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dt. 27-2-1997 has been issued by the Board without jurisdiction and the same cannot be taken cognizance of by this Tribunal. The appellants cannot in any case take shelter under such illegal instructions when that would have the effect of denying the state its legitimate revenue demanded and adjudicated by officials duly vested with statutory powers. 8.As regards merits of the case, the issue has been dealt with great clarity in the cited decision of the Punjab and Haryana High Court in the case of Vardhman Polytex Limited v. U.O.I. We extract below the relevant portion of the said decision :- "The amendment made in the second notification dated 1-3-1997 is intended to bring about parity between two types of manufacturers in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly prospective effect. As such, the duty is payable by the appellants for the period from March, 2000 to November 2000 in view of the fact that the amending Notification No. 11/2000 was issued on 1-3-2000. 10.As regards the contention that the impugned order goes beyond the Show Cause Notice, we do not find any substance in the same. The notice clearly demands the duty invoking Notification No. 1/2000, dt. 1-3-2000 and the same has been adjudicated by the Original authority. 11.As regards the issue relating to valuation for the purpose of charging duty, the learned Jt. C.D.R. has raised a question that this point was not raised at the earlier stages during adjudication and appeal proceedings. However, as contended by the learned Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de or in the Board's Circulars mentioned therein. It is also not correct to contend that the concept of cum-duty-price is not recognized under the Customs Valuation Rules. In fact, Interpretative Note to Rule 4 contained in the Schedule to the Customs Valuation Rules makes it clear that value shall not include duties and taxes. By implication, if duties and taxes have not been realized separately, the sale price has to be treated as cum-duty price and duties and taxes have to be deducted to arrive at the assessable value. We are, therefore, of the opinion that the matter needs to be remanded to the Dy. Commissioner for considering the total amount received by the appellants from DTA sale as the cum-duty-price and to re-calculate the assessa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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