2010 (11) TMI 219

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....eal No. E/3431/2005 filed by the Appellants. The Appellant in this application pray for deletion of para 4(e), 9, 9.1 and 9.2 of the order dated 9-4-2010. 2. Heard both sides. 3. Shri J.M. Sharma, Consultant, the learned Counsel representing the appellant, pleaded that in para 4(e) of the order, it is mentioned that the appellant had pleaded that for calculating the duty demand, the price realized from the customers in respect of the clearances without payment of duty must be treated as cum-duty price in view of the judgment of the Hon'ble Supreme Court in the case of CCE, Delhi v. Maruti Udyog Ltd. reported in 2002 (141) E.L.T. 3 (S.C.) and Collector v. Shri Chakra Tyres Ltd. reported in 2002 (142) E.L.T. A-279 (S.C.) and the as....

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....ecific plea had been made on behalf of the Appellant that the price realized by the Appellant company in respect of clandestine clearances must be treated as cum-duty price in view of Hon'ble Supreme Court's judgments in the case of CCE, Delhi v. Maruti Suzuki Ltd. (supra) and Collector v. Shri Chakra Tyres Ltd. (supra). We, relying upon Tribunal's judgements in the cases of Sarla Polyester v. CCE reported in 2008 (222) E.L.T. 376 and Asian Alloys v. CCE, Delhi reported in 2006 (203) E.L.T. 252, had distinguished the present case involving clandestine clearances without payment of duty and clearances of goods produced in the EOU from DTA unit at nil rate of duty by fraudulently availing an exemption meant for DTA units, from the cases of Ma....

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....nufactured in its factory, from its DTA unit at nil rate of duty by claiming some duty exemption available to DTA units, by falsely claiming the goods to be manufactured in DTA unit, the EOU on being caught and asked to pay the duty in terms of proviso to Section 3(1) of the Central Excise Act, 1944 cannot claim the price realized in respect of such DTA clearances to be cum-duty price and claim abatement of duty from sale price for determining the assessable value. In case of Maruti Suzuki Ltd., the Assessee was clearing steel scrap without payment of duty under impression that no duty was chargeable and there was no allegation of clandestine removal or deliberate duty evasion against them. In case of Shri Chakra Tyres, the Assessee continu....

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....Act, as it stood during the period w.e.f. 1-7-2000 provided that the normal price/transaction value does not include the duty of excise, sales-tax and other taxes if any, actually paid or payable, it could not be the intention of the legislature to provide for the abatement of taxes for determining the assessable value even when the taxes had not been paid by an Assessee deliberately by taking recourse to fraud, mis-statement, suppression of facts or willful contravention of the provision of the Central Excise Act or of the Rules made thereunder with intent to evade the payment of tax. 5.2 In the order dated 20-3-2001 [2001 (135) E.L.T. 1316 (Tri.-Del.)], the Tribunal while remanding the matter for de novo adjudication, had observed....