2024 (8) TMI 847

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....rms of Section 4(1)(b). 2. Ms. Nidhi Nawal learned Counsel appearing on behalf of the appellant at the outset submits that this issue in the appellant's own case has been considered and decided by this Tribunal vide following orders:- (a) Final Order No: A/177 to 179/WZB/AHD/06 dated 09.11.2006 in Appeal No. E/3412 to 3414/2001. (b) Final Order No: 12013-12016-2023 dated 12.09.2023 in appeal no. E/11888/2014 (c) Final Order No: FO/A/11279/2023-EX[DB] dated 19.06.2023 in Appeal No. E/13536/2014 (d) Commissioner v. Sun Pharmaceutical Inds. Limited- 2017 (350) Ε.Ε.Τ. A61 (S.C.)] She submits that even the Hon'ble Supreme Court also affirmed the decision of this Tribunal on the issue involved ....

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.... 2015 (326) ELT 3 (SC) the relevant order of the Hon'ble Apex Court has held that Excise duty is payable in terms of section 4(i)(a) not under section 4A but on pro rata value of good cleared under section 4A i.e. on the transaction value between the assessee and distributor to whom, the physician samples were sold. The relevant order is reproduced below: "6. As already noted above, the only ground which was mentioned in the Show Cause Notice was that since the goods had not been sold, the provisions of Section 4(1)(a) of the Act could not be applied. We find that in the show cause notice, the Department has, thus, accepted that no monetary consideration or any other consideration had been received by the assessee or the distributo....

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.... the sole consideration for the sale, be the transaction value; (b) in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed. Explanation. - For the removal of doubts, it is hereby declared that the price-cum duty of the excisable goods sold by the assessee shall be the price actually paid to him for the goods sold and the money value of the additional consideration, if any, flowing directly or indirectly from the buyer to the assessee in connection with the sale of such goods, and such price-cum-duty, excluding sales tax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods. (2) The provisions of thi....

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....d includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods." 9. As per the aforesaid provision, it is the transaction value which is to be determined and on which excise duty is payable. ....