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TMI Blog2017 (4) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... ollected differential duty which they retained and paid up only on being advised by Department - it is an admitted fact that assessee had not collected any duty amount of more than 12.36% from their buyers. In these circumstances, the price charged by the respondent-assessee will surely have to be adopted as a "cum duty price". Appeal dismissed - decided in favor of assessee. - E/COD/21159/2015, E/Stay/21160/2015, E/21996/2015 - A/30536/2017 - Dated:- 12-4-2017 - Mr. (Dr.) Satish Chandra, President And Mr. Madhu Mohan Damodhar, Member(Technical) Sh. Guna Ranjan, Superintendent (AR) for the Appellant Sh. Suresh Astekar, Advocate for the Respondent ORDER [Order Per: Madhu Mohan Damodhar] For the reasons stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting the same from their customers. Therefore, the price of the goods already sold by the respondent without collecting the Central Excise duty to that extent was to be treated as cum-duty price in terms of Explanation to Section 4 (1) of the Central Excise Act, 1944. After due process of law, the refund sanctioning authority rejected the refund claim on the ground that the concept of cum-duty is not applicable to the DTA clearances made by EOUs. In appeal, Commissioner (Appeals) vide the impugned order filed by assessee inter alia held that cum duty benefit was very much available to them and that one year period of filing refund is not applicable as the assessee has paid the differential duty under protest. 3. Aggrieved, Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On behalf of respondent- assessee ld. Counsel Shri Suresh Astekar reiterated the correctness of the impugned order and also submitted a synopsis which can be summarized as under :- (i) The Revenue has contended in the present appeal that as per the proviso to Section 3 (1) of the Central Excise Act, the clearances made by an EOU into the DTA have to be subjected to the aggregate duties of customs and the valuation for the purpose of assessment of customs duty has to be determined in terms of the Customs Act, 1962. (ii) Above contention of the Revenue is clearly contrary to the provisions of Section 3 (1) of the Central Excise Act, 1944, which clearly provides that the duty to be paid by an EOU on its DTA clearances, is Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by lower appellate authority. Proviso to Section 3 (1) of Central Excise Act provides measure of Central Excise duty leviable on DTA clearance by EOU notwithstanding the manner of its calculation. The fact that duty is to be calculated on value determined under Customs Act, 1962, cannot alter the character of the proviso to Section 3 (1) of Central Excise Act. 6.3 We also find that lower appellate authority has correctly relied upon the ratio of Tribunal's Larger Bench decision in Kumar Arch Tech Pvt. Ltd. Vs CCE Jaipur-II 2013 (290) ELT 372 (Tri.-LB), the relevant para-8 of which order is worthy of reproduction : 9. We also find it difficult to accept the other plea of the appellant that proviso to Section 3(1) is a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el.) is misplaced. The facts in that particular case related to clandestine removal and for that reason, Tribunal has held that cum duty value was not available to clandestinely removed goods. In the present case however, it is not the allegation that assessee has effected clearances clandestinely. On the other hand, assessee had effected the DTA clearances in a transparent manner, under cover of invoices indicating therein separately price charged and the taxes thereon. The only error committed by the respondent is that they paid duty at the rate of 12.36% on the DTA clearances which, much later, department directed them to pay at the rate of 23.89%. It is also not disputed that payment of duty, albeit at the lower and incorrect rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een so construed by this Court in Asstt. Collector of Central Excise and Others v. Bata 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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