TMI Blog2003 (10) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that an Shri Jitendra Singh is preoccupied at Chennai for arguing some matter in the High Court. We observe that this matter is being adjourned on the request of the Appellants since November, 2002 and most of the time Shri Jitendra Singh has not even appeared before the Tribunal as someone else was seeking adjournment on his behalf. We, therefore, take up the appeal for disposal after hearing Shri Vikas Kumar, learned SDR, and perusing the records. 3. It has been submitted by the Appellants in their memorandum of appeal that they manufacture printed and unprinted paper cups for holding ice-cream which are classifiable under Heading 4823.90 of the Schedule to the Central Excise Tariff Act; that in their classification list they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has also been mentioned in the memorandum of appeal that the amount of duty confirmed against them is not correct as the value taken for the purpose of levying duty is inclusive of Excise duty; that the price is cum-duty price and as held by the Larger Bench of the Tribunal in the case of Srichakra Tyres Ltd. v. CCE, Madras - 1999 (108) E.L.T. 361 the abatement of duty from the price of goods is to be given for arriving at the assessable value. Finally, the Appellants have also contended that no penalty is imposable on them as the entire issue has arisen out of classification list or the declaration filed by them. 5. Countering the arguments Shri Vikas Kumar, learned SDR, submitted that notification provides concessional rate of duty t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 3 conditions in the exclusion clause are satisfied. We find no reason to interfere with this finding of the Commissioner (Appeals) and hold that the impugned product is covered by the exclusion clause in the Notification and as such the benefit of the notification is not available. However, we agree with the Appellants that no penalty is imposable as the issue involved is one of interpreting the provisions of the Notification and the Appellants has only claimed the benefit of notification in their classification list. We also agree with the learned Advocate that the price has to be treated as cum-duty price and in terms of the decision of the Larger Bench of the Tribunal in the case of Srichakra Tyres which has been affirmed by the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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