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TMI Blog1998 (8) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... g before the Tribunal; this is particularly so in these cases. There is already a decision of the Supreme Court which may be helpful in deciding the legal controversy in these cases. Appellant is not represented. The request for adjournment is refused. We have heard Shri K. Srivastava, SDR and perused the papers. 2. Appeal E/765/90-A has been filed by the appellant challenging the Order-in-Appeal No. SKM-2131/89-B.I., dated 20-10-1989 passed by the Collector of Central Excise (Appeals) Bombay, setting aside the Order-in-Original No. K-II/202/88, dated 12-9-1988 passed by the Assistant Collector of Central Excise, Bombay. The Assistant Collector passed order on approval of the price list in Part-I filed by the common appellant in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) who held that since factory gate price to wholesalers is available, that price should govern the clearances to depots also and set aside the orders passed by the Assistant Collector and directed deduction of only the tax element. This order is being challenged in Appeal E/765/90-A. 3. Appellant has filed E/4055/90-A against Order-in-Appeal No. SKM-552/90-B.I., dated 25-4-1990 passed by the Collector of Central Excise (Appeals), Bombay confirming the Order-in-Original dated 12-9-1988 passed by the Assistant Collector, Bombay. The order passed by the Assistant Collector also related to price lists in Part-I filed by the appellant. The Assistant Collector passed an order similar to the one passed by his counterpart in the earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt held as follows :- "The manufacturer of tapes may manufacture and sell blank tapes upon which the purchaser would be free to record such sound as he chose. The manufacturer may go one step forward and record sound itself and sell such tapes. It is to cover both eventualities that Tariff Item 59 is categorised as it is. But it is altogether different to say that by reason thereof the recording of sound on blank tapes as done by the appellant on job work basis is a manufacturing process. As the Tribunal in M. Basheer Ahammed's case has rightly pointed out, even such a pre-recorded tape can have the sound erased from it and it can be used again for recording other sound. We are in agreement with the view taken by the dissenting Member ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the appellant. If the same manufacturer manufactures blank tapes, records sound or sound and image and clears the recorded tapes from the factory for sale, there is only one excisable product, namely, recorded tape and the assessable value of the recorded tape should include all elements which contribute to the value of the tape. If, on the other hand, a person buys duty paid blank tapes, records sound or image and sound and sells such recorded tapes, he does not manufacture a new excisable product is held by the Supreme Court and is not required to pay duty on such recorded tapes. The factual situation requires examination. 8. Collector (Appeals) in the order challenged in E/765/90 held that the factory gate price will apply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd selling such recorded tapes, there is only one excisable product, namely, the product in the form in which it is cleared. Appellant has paid royalty charges for obtaining permission to record particular films. Royalty charges are naturally required to be taken into consideration in fixing the price of the recorded tapes. The act of recording has enhanced the value of the unrecorded tapes and the tapes in the form in which they are cleared from the factory have been enriched by the recording. Therefore, royalty charges should be an element in the assessable value and cannot be deducted. 10. Appeals are disposed of in the following manner :- (1) Finding against deductibility of royalty charges is confirmed. (2) The questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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