TaxTMI 
TaxTMI 
2003 (7) TMI 406
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Order 8/2003 (CEX.), dated 17-4-2003. 2. Briefly stated, the applicant was alleged to have manufactured and cleared blended yarn i.e., cotton yarn blended with synthetic fibre falling under Central Excise Tariff Heading 52.05 of the Schedule to Central Excise Tariff Act, 1985, and cleared them in the guise of cotton yarn discharging duty at a lesser rate namely, @ 5%, instead of @ 18% leviable on blended yarn. The case was adjudicated by the Additional Commissioner of Central Excise, Coimbatore, in his Order 7/99 (A.D.C.), dated 31-3-99. In the said order, the Additional Commissioner has held that the applicant had manufactured and cleared clandestinely, cotton yarn containing synthetic staple fibre assessable to duty @ 18% ad valor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hakra Tyres Ltd. v. Collector of Central Excise, Madras - 1999 (108) E.L.T. 361 (Tribunal) and the judgment of the Hon'ble Supreme Court in Commissioner of Central Excise v. Maruti Udyog Ltd., reported in 2002 (141) E.L.T. 3 (S.C.). 5. In their report dated 3-4-2003, the respondent has objected to the prayer to treat the sale price as cum-duty price on the grounds that (i) deeming of sale price as cum-duty price for calculation of duty as per Section 4(4)(d)(ii) is applicable and adoptable only in cases where the facts relating to the transaction is made available/known to the Department; (ii) the applicant had no practice of selling their goods at cum-duty value and all their sales were effected only on the basis of the assessable va....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Section, i.e., 4(4)(d)(ii), the values shall not include the amount of duty of excise, sales tax and other taxes, if any, payable. It does not restrict the scope only to the duty, if any, actually paid. Once the Revenue holds that the duty payable is @ 16%, then the said amount of duty calculated @ 16% is eligible for reduction from the normal price as the above said section allows abatement of duty payable, when it is not the case of the Revenue that the applicant has realised any amount over and above the invoice price nor that the applicant and the buyers were related persons. 7. During the hearing on 20-6-2003, Shri Ponnu Rajendran contended that the applicant was aware of the actual nature of the goods and, would have, therefore....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hereof cannot also be taken as bona fide price of the correct goods, inasmuch as legally it is not correct to accept some portion of a statement while rejecting the remaining portion as incorrect. 8.  Again, the Revenue's plea that the appeal against the CEGAT's order in Srichakra Tyres is pending is not tenable. On the other hand, as seen from 2002 (142) E.L.T. A279 (S.C.), the Apex Court have dismissed the appeals observing that the revision of prices was cum-duty. The Apex Court have reached the above conclusion based on the facts of the said case. As such, the ratio of the said judgment cannot be applied straight away. At the same time, as the applicant is not shown to have realised more amount than invoiced, the price realised as....