TaxTMI 
TaxTMI 
2010 (8) TMI 49
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.... has been demanded on such assessable value from the appellants, while it was the claim of the appellant to the contrary contending that the issue had been settled by the Tribunal's order in appellants' own case decided on 16th April, 2004, and reported in 2004 (170) ELT 245. 3. It is the case of the appellants that the definition of the expression "transaction value" contained in the statutory provision existing prior to amendment makes no difference to the legal provision subsequent to 1st July, 2002 and considering the decision in appellant's own case reported in 2004 (170) ELT, that in Bombay Tyre International case reported in 1983 (14) ELT 1896 and the Supreme Court order in the appellant's own case dismissing the appeal filed by the department reported in 2006 (201) ELT 28 , the issue stands concluded. Therefore, it is not open for the department to re-agitate the same and that too contrary to what has been decided earlier. On the other hand, it is the case of the department that Section 4 of the Central Excise Act, 1944, (hereinafter referred to as "the said Act") as amended w.e.f. 1st July, 2000, has incorporated the concept of "transaction value" for the purpose of asses....
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....hich the vehicles were made available to them by the appellants and the difference between sale price at which the vehicles are sold to the customers and the original amount paid by the dealers to the appellants, i.e. dealer's margin contained provision for rendering pre-delivery inspection and three after sale services. Taking into consideration the concept of "transaction value" under new Section 4 of the said Act, w.e.f. 1st July, 2000, which provided that whatever is recovered from the buyer by reason of or in connection with sale, whether payable at time of sale or any other time, directly or indirectly, to the manufacturer or paid on behalf of the manufacturer to the dealer including the charges for servicing and warranty, was to be included in the transaction value and considering the same for the relevant period, three show cause notices came to be issued, requiring the appellants to show cause against their liability to pay the duty along with interest and penalty. The relevant period is from May, 2005 to August, 2007. 7. The appellants contested the proceedings by filing their replies to the show cause notices. The replies to all the show cause notices were to the effec....
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.... of the new section themselves. The PDI and service charges remained included in the commission of the dealer and commission payable to him by the buyer were not payable to the manufacturer, and therefore, the collection of commission and rendering of services were entirely outside the scope of the sale of the automobiles by the manufacturer to the dealers. What is required to be included in the assessable value under the new Section is the value, including the cost incurred in relation to the manufacture and not the cost incurred on remuneration received by the dealer. The circular dated 1.7.2002 issued by the Board was not in conformity with the Section 4 of the said Act. On the other hand, it was the contention of the department that the circular was in conformity of the definition of the transaction value under new Section 4 and PDI and the services were provided by the dealer on behalf of the assessee, and therefore, the cost towards the same formed part of the assessable value. 11. Having recorded the contentions of the parities in the matter, the Tribunal proceeded to hold as under :- "The dispute has been reopened by the Revenue in view of the purported enhanced scope o....
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....cost of these charges cannot form part of the assessable value of the automobiles in question. While on this issue, it would be appropriate to recall that valuation provisions under Section 4 constitute the machinery provision for levy and collection of duty and a machinery provision cannot be interpreted to grossly exceed the scope of the levy." (Emphasis supplied) 12. Bare perusal of the said order dated 6th April, 2004 would disclose that the Tribunal decided the matter on admitted facts of the case and did not decide the issue which arise for consideration in the matter in hand. The findings that "In the present case, admittedly nothing flows to assessee MUL from the consideration towards PDI as after sale services" and further that "For that reason, both of these charges cannot form part of assessable value of the automobiles in question" clearly disclose that the case was decided not on the point of law but on facts of the case and that too, on admitted facts. Being so, it cannot be said that the issue stands concluded by the said order. 13. It is true that by order dated 3rd of April, 2006 the appeal which was sought to be filed against the said order of the Tribunal d....
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....rson selling the vehicles. Measure of levying is expanded and its composition is broad based to bring all that a buyer is liable to pay or incur by reason of sale or in connection on therewith. Clearance of goods subject to fulfilment of sales conditions contribute to the assessable value by the amended definition of transaction value. The transaction value, therefore, is not confined to the amount actually paid and is not restricted to flow back of consideration or part thereof to the assessee directly but even for discharge of sales obligations both in present and future. It would include even the amount paid by the buyer to the dealer or the persons selling vehicles in pursuance of the contract between the dealer or the seller and the assessee in relation to or connection with the sale of the vehicles and such payment may be in the course of sale or even after sale. Thus all deferred and future considerations add to assessable value. The theory of "flow back of consideration or part thereof" is not confined to direct monetary benefit to the assessee in connection with the sale of vehicles but rejuvenated to include consideration integrally connected with post sale obligations al....
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....udes in addition to" and "including but not limited to". At the same time, it precisely pinpoints the items which are excluded therefrom, with the prefix as "but does not include". Exclusions being defined no presumption for further exclusions is permissible since measure of levy is revenue yield base. There appears no ambiguity to say that the amendment made w.e.f. 1.7.2002 has to cover all factors/elements integrally connected with sale of excisable goods to contribute for determination of assessable value thereof. 19. If one peruses the definition clause of the expression "transaction value", it refers to "any amount that buyer is liable to pay". Only restriction that has been imposed is that such payment should be "by reason of or in connection with the sale" on such goods. Thus reason of sale and inter connection thereto are essential elements to contribute for assessable value. The definition further clarifies that any such amount is "not limited to, any amount charged for ." The expression "any" has been used twice and on both the occasions, it refers to the amount payable by the buyer. The second time use of the word "any" is preceded by the expression "but not limited to....
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....id 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 in a case where goods are sold by the assessee, for delivery at the time and place of 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. All the expressions used in this provision of law are sufficiently explained in the said section itself. 23. The expression 'transaction value' is the guiding principle in the process of ascertaining the assessable value of a product. The sale price, being paid or payable as the sole consideration, forms the base for the transaction value. Depending upon the fact situation relating to all the factors mentioned in said section 4 of the said Act, including the agreement and the arrangement arrived at between the manufacturer and the dealer or the agent in respect of sale of the product to the buyers, and the terms and the conditions thereof, the transaction value arrived at would lead to the quantification of the assessable value of the product, which in turn will determine the duty liability of the manufacturer. ....
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....0(5) enlarges the definition of the word "plant" by including in it the words which have already been mentioned before. The very fact that even books have been included shows that the meaning intended to be given to "plant" is wide. The word "includes" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the "statute". When it is so used, these words and phrases must be construed as comprehending not only such thing as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include." (Emphasis supplied) 27. The Apex Court in the Regional Director, Employees" State Insurance Corpn. Vs. M/s. High Land Coffee Works of P.F.X. Saldanha & Sons and another, reported in AIR 1992 SC 129 while dealing with the question, as to whether factories belonging to the respondents in the said case would loose the benefit of exclusion of their factory from the applicability of the Employees" State Insurance Act, 1948 on account of amendment carried out to the definition of the expression "seasonal factory", took note of the exact difference between the amende....
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....y generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include." (Emphasis supplied.) 28. In P. Kasilingam and others vs. P.S.G. College of Technology and others, reported in AIR 1995 S.C. 1395 the Apex Court clearly brought out difference in the meaning between the terms "means", "means and includes" and "includes" in the following words:- "A particular expression is often defined by the Legislature by using the word "means" or the word "includes". Sometimes the words "means and includes" are used. The use of the word "means" indicates that "definition is a hard and fast definition and no other meaning can be assigned to the expression that is put down in definition". The word "includes" when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clau....
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....der to enlarge the meaning of the words or phrases must be construed as comprehending, not only such things, as they signify according to their natural import, but also those things which shall include. (See Dadaji v. Sukhdeobabu, AIR 1980 SC 150; Reserve Bank of India v. Pearless General Finance and Investment Co. Ltd., AIR 1987 SC 1023 and Mahalakshmi Oil Mills v. State of Andhra Pradesh, AIR 1989 SC 335). The inclusive definition of "district judge" in Article 236 (a) of the Constitution has been very widely construed to include hierarchy of specialized Civil Courts viz. Labour Courts and Industrial Courts which are not expressly included in the definition. (See State of Maharashtra v. Labour Law Practioners" Association, AIR 1998 SC 1233). Therefore, there is no warrant or justification for restricting the applicability of the Act to residential buildings alone merely on the ground that in the opening part of the definition of the word "premises", the words "building or hut" have been used." (Emphasis supplied) 30. In Black Diamond Beverages vs. Commercial Tax Officer reported in AIR 1997 SC 3550 = (1998) 1 SCC 458, it was held the that the definition of "sale price" in secti....
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....on the decision in the appellants' own case referred to above. Surprisingly the Tribunal therein has observed that the judgment in the appellants' own case was upheld by the Supreme Court in the order reported in 2006 (201) ELT 28. We have already quoted above the order of the Apex Court which clearly discloses that the appeal was dismissed, not on merits, but only on the ground that there was inordinate delay in filing the appeal. Such an order cannot be construed as amounting to upholding the decision of the Tribunal. 33. In Commissioner of Central Excise, Coimbatore vs. Texmo Industries, reported in 2008 (226) ELT 375 (Tri-Chennai), the Tribunal decided the matter merely on the basis of the appellants" own case and by referring to the decision of the Apex Court in Bombay Tyres International case. The Bombay Tyre International case was related to the period prior to 1st July, 2000 i.e. prior to introduction of concept of "transaction value". The decision nowhere considered the scope of "transaction value". 34. The decision in Kinetic Motor Co. Ltd. vs. CCE, Aurangabad, reported in 2009 (240) ELT 734 (Tri.-Mumbai) was delivered solely on the basis of the appellants' own case d....