TaxTMI 
TaxTMI 
2023 (12) TMI 480
X X X X Extracts X X X X
X X X X Extracts X X X X
....hanshu Bissa as amicus curie for assistance. 2. The issue in short involved at this appellate stage pertains to benefit of Cum duty price which was denied to the appellant on the services of Management, Maintenance or Repair Service and Erection Commissioning and Installation Services provided by them in the year 2010-11. Party on confirmation of demand became liable for penalty under Section 67 and for duty of Rs. 2,42,901/-, as well as applicable interest thereon. 3. Department on the basis of its investigations and testimonial evidence found that the appellants were providing above services during the impugned period, but had need a taken any registration or were filing any returns at the time of search. In short these services wer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....also had the benefit of referring to the decision of M/s. Maruti Udyog Ltd., as reported in 2002 (141) ELT 3 (S.C). Learned Advocate Shri Sudhanshu Bissa, (Amicus curie) has brought out the decision as indicated above to the present appeal to support party's appeal. 4. Considered. This Court finds that in the decision of Maruti Udyog Ltd, that the cum duty price realised by the assesse was entire price inclusive of Excise duty. Therefore by not separately charging nor intending to charge assesse had taken upon itself to discharge the liability to pay taxes on the good sold, therefore cum duty benefit will be available to it, was the decision of the Hon'ble Court. 4.1 As against this, in the matter of Amrit Agro Industries Ltd Vs. Comm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m stood exempted from payment of duty under above exemption notification dated 1-3-1997. Therefore, according to the Department, all these years the assesse had cleared the goods on the footing that roasted peanuts were exempted. They have filed the requisite declarations/classifications on that basis According to the Department, since the assessee had cleared roasted peanuts without payment of duty during the relevant ears, the quantum of duty is required to be recomputed. According to the Department, in the normal case where the assessee does not seek exemption or in cases where goods are not exempted, the of duty has got to be recomputed on the oasis of "cumduty price" According to the Department, the reasoning behind recomputation based....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d, it is urged on behalf of the assessee that the basis for levy of excise duty under section 4(4)(d) (i) of Central Excises & Salt Act, 1944 is the wholesale price. According to the assessee, that price will include the element of duty payable because such duty forms part of the consideration for sale of the goods according to the terms and conditions of sale of such goods and, therefore, whenever a further demand of duty is created against the assessee and such further demand of duty cannot be passed on to a customer in view of the stipulations of the terms and conditions of sale between the assessee and his customer, the original consideration (including duty, if any) received by the assessee for sale in wholesale trade has to be taken a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rer has to calculate the value on which the duty would be payable and it is on that value and not the cum- duty price that the duty of excise is paid. Therefore, unless it is shown by the manufacturer that the price of the goods includes excise duty payable by him, no question of exclusion of duty element from the price for determination of value under section 4 (4)(d)(ii) will arise." In short in the above case "Nil" duty charged when availing exemption was deemed as duty charged and therefore part of the consideration. Again in the of Commr. Of C. Ex jaipur Vs. Dugar Tetenal India Ltd, cited (supra) though the case of invocation of Section 11A(1) of C.Ex. Act was based on mis-declaration/misstatement. The Hon'ble Apex Court after vi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... India Ltd., 1996 (4) SCC 563, and it is thus clear that when cum-duty price is charged, then in arriving at the excisable value of the goods the element of duty which is payable has to be excluded. The Tribunal has, therefore, rightly proceeded on the basis that the amount realised by the respondent from the sale of scrap has to be regarded as a normal wholesale price and in determining the value on which excise duty is payable the element of excise duty which must be regarded as having been incorporated in the sale price, must be excluded. There is nothing to show that once the demand was raised by the Department, the respondent sought to recover the same from the purchaser of scrap. The facts indicate that after the sale transaction was ....