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TMI Blog1989 (8) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... se duty on the first clearance upto an aggregate value not exceeding Rs. 5.00 lakhs. Value for this purpose has to be determined in accordance with the Section 4 of the Central Excises Salt Act, 1944. Under Section 4(4)(d)(ii) of the Act, value does not include the amount of excise duty, sales-tax and other taxes payable on such goods. 2. A notice of hearing dated 11-7-1989 was sent, the appellants vide their letter dated 30-6-1989 had intimated that the matter may be decided on merits. Earlier a notice dated 30-5-1989 was sent by registered post fixing the hearing on 6-7-1989. Since the appellants have not come for personal hearing, we proceed to decide the same on the written submissions and the appeal Memo. Shri D.M. Borade, Ld. JDR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same issued where Notification No. 71/78-C.E. was involved in the case of M/s. Hubli Chemical Works v. C.C.E., Madras, reported in 1984 (18) E.L.T. 488. The Tribunal had held that duty so collected forms part of the assessable value of the goods. The Hon ble Andhra Pradesh High Court in the case of Asstt. Collector of C.E. v. Andhra Pradesh Paper Mills Ltd. reported in 1987 (32) E.L.T. 684, had held that where the benefit of exemption was not given to the consumers, the same has to be included, para-4 from the said judgment is reproduced below :- It is not necessary to deal with the matter in any detail as the controversy is now set at rest, after the decision of the learned Single judge, by an Explanation inserted by Clause 47 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of duty of excise payable on the goods under assessment shall alone be taken into account. The Explanation also contains a clear elucidation of what is meant by the effective duty . It is not denied that the above Explanation inserted with retrospective effect from 1-10-1975 applies to the present case. That being so, it is no longer possible for the assessee to contend that instead of the effective Excise duty the Excise duty payable without taking into account the exemption granted has to be excluded from the normal price. Learned counsel for the assessee fairly conceded that because of the above explanation inserted by the Finance Act of 1982 with retrospective effect from 1-10-1975 the assessee s contention is no longer tenable. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - reported in 1988 (37) E.L.T. 394 held that duty charged from the customers but not paid has to be included in the assessable value for clearances, para-4 from the said judgment is also reproduced as below :- We find no force in the contention of Shri Jain. There is no gainsaying that while part of duty may have been specific it was also ad valorem and therefore value had to be determined only in accordance with Section 4. The Explanation inserted to Section 4(4)(d) retrospectively with effect from 1-10-1975 by the Finance Bill, 1982 sets at naught Shri Jain s argument. The Explanation is reproduced below :- Explanation - For the purposes of this sub-clause, the amount of the duty of excise payable on any excisable goods shall be the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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