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TMI Blog2010 (12) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is not entitled to exemption under the notification in question, it would certainly be entitled to avail of Modvat credit in respect of the raw material used in the manufacture of the goods in question. As regards the grant of benefit of cum-duty price, the Supreme Court in the case of Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd., (2002 (2) TMI 101 - Supreme Court) has held that the wholesale price which is charged is deemed to be the value for the purpose of levy of excise duty, but the element of excise duty, sales tax or other taxes which is included in the wholesale price is to be excluded in arriving at the excisable value, order of the Tribunal being in consonance with the principle laid down in the aforesaid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the Tribunal has committed substantial error of law in setting aside penalty imposed under Rule 173Q(1)(a) of the Central Excise Rules, 1944 on the respondent by the adjudicating authority and confirmed by the appellate Commissioner?" 2. Concisely stated, the facts of the present case are as under : The respondent assessee is holding Central Excise Registration for manufacture of Plastics Injection & Blow Moulded Articles, viz. Plastics Containers, Liac, bungs plugs, winds lugs, etc. failing under Chapter No. 3923.90. The assessee is also engaged in the manufacturing of two categories of above mentioned articles, both falling under the same chapter heading. The assessee manufactured plastic articles and availed modvat credit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating its condition No. 10 at Sl. No. 69. A show cause notice dated 9-1-1999 therefore came to be issued wherein the allegations of wrongful availment of exemption under Notification No. 5/98 dated 2-6-1998 have been made and duty to the tune of Rs. 8,25,031/- was demanded under Section 11A of the Central Excise Act, 1944. Over and above the aforesaid demand, provisions for imposition of mandatory penalty under Rule 173Q(1) as also penal interest under Section 11AB were also invoked in the show cause notice. The show cause notice was adjudicated by the Adjudicating Authority, who, after giving opportunity of hearing, passed an order dated 27-12-2001 holding that the demand made in the show cause notice is valid and justified. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (Appeals) and the Tribunal. 5. Mr. R.J. Oza learned senior standing counsel for the appellant submitted that the Tribunal had committed a serious error of law in blindly placing reliance on its decision in the case of M/s. N.M. Nagpal (P) Ltd. in deciding the issues involved in the present appeal. It was argued that the Tribunal has erred in not recording its findings as to the applicability of the said decision with reference to the comparative facts of both the cases and thereby justifying extension of benefit of MODVAT credit and other benefits to the respondent. 6. On the other hand Mr. Paresh Dave, learned advocate, appearing on behalf of the respondent assessee submitted that the facts of the case of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of M/s. N. M. Nagpal (P) Ltd. However, it was submitted that in the case of M/s. Nagpal (P) Ltd. while interpreting the notification against the assessee the Tribunal had allowed the assessee the benefit of MODVAT credit of duty in respect of inputs; had directed the original authority to treat the sale price of the goods as cum-duty price for the purpose of valuation and determination of duty amount; and had set aside the penalty. Accordingly the learned advocate for the assessee had submitted that the same treatment be extended to it in the present appeal. The Tribunal following its earlier decision in the case of M/s. N.M. Nagpal (P) Ltd. confirmed the demand against the assessee and directed that the same be requantified after extendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isable goods for purposes of charging of duty of excise. Under Section 4(1), the duty of excise is chargeable on any excisable goods with reference to the value which is deemed to be the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade where the buyer is not a related person and the price is the sole consideration for the sale. Section 4(4)(d)(ii) states that value in relation to any excisable goods does not include the amount of duty of excise, sales tax and other taxes, if any, payable on such goods and, subject to such rules as may be made, the trade discount, etc., is also to be allowed as a deduction. 5. A reading of the aforesaid Section clearly indicates that the wholesal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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