1992 (12) TMI 129

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....price lists in Part-1 and Part-u for approval of prices for their product 'Paper' falling under Item No. 17(2) of CET, claiming the exemption under Notification No. 128/77, dated 18-6-1977. The same was approved. Accordingly, the appellants availed the benefit of the said Notification and paid concessional rate of duty @ 50% of the effective applicable rate of duty. But subsequently, on verification of sale invoices, it appeared that the appellants though paid the duty at the concessional rate, that is to say, 50% of the effective rate of duty, in view of the Notification No. 128/77, have recovered full considerations of duty at the effective rate from their buyers. As a sequel thereof, a Show Cause Notice dated 11th September, 1991 was iss....

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....e the present appeal. 3. Arguing on behalf of the appellants, Shri K.P. Joshi, learned counsel, submitted that both the authorities below erred in holding that the duty charged by the appellants in excess of 50% of the effective applicable rate of duty shall form part of the assessable value. Elaborating on his submission, he submitted that the Notification No. 128 /77 does not contain a condition that its benefit should be passed on to the consumer and cited the case of Modi Rubber Ltd., Modinagar v. Union of India -1978 (2) E.L.T. (J 127). In reply, Shri Prabhat Kumar, learned JDR, while supporting the impugned Orders cited the Division Bench judgments of the Bombay High Court rendered in the case of Aurangabad Paper Mills Ltd. v. Unio....

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....ive Co. Ltd., supra, has considered the said judgment of the Delhi High Court rendered in the case of Modi Rubber Limited, supra, and the effect of the said amendment and after considering so, held that "in the first place, it is not possible to give effect to the principles laid down in Modi Rubber Limited case 1978 (2) E.L.T. 127 (Delhi) as well as in the case of B.P. Paper Mills Limited -1980 (6) E.L.T. 210 (A.P.) and other like cases inasmuch as the controversy is now set at rest, in view of the Explanation added to sub-clause (ii) of sub-section (4) of Section 4 of the Act with retrospective effect", and "Secondly an analysis of the language of the Explanation clearly shows that exclusion under Section 4(4)(d)(ii) of the Act is only th....