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TMI Blog2018 (1) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutes the assessable value / transaction value for the purpose of levy of Central Excise duty. Appeal dismissed - decided against appellant. - E/Early Hearing/24100/2014 in E/1998/2010-DB E/1998/2010-DB - Final Order No. 23134 / 2017 - Dated:- 11-12-2017 - Shri S.S Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Ms. Parvathi, Advocate For the Appellant Shri Pakshi Rajan, Asst. Commissioner(AR) For the Respondent ORDER Per : S. S. Garg The present appeal is directed against the impugned order dt. 17/06/2011 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeal of the appellant and upheld the Order-in-Original. 2.1. Briefly the facts of the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60 MT of LPG initially cleared for domestic purpose and subsequently diverted for commercial purposes and paid central excise duty provisionally amounting to ₹ 1,25,12,16,679/-. On this allegation, show-cause notices were issued demanding differential duty and after following due process, original authority confirmed the demand. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) who rejected the same. Hence the present appeal. 3. Heard both parties and peruse records. 4. The only issue involved in the present case is whether the duty of Central Excise is payable on the Refinery Gate Price i.e. RGP paid by the OMCs to the appellant or it is payable on the subsidised price at which the OMCs so sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that duty is payable on the full price collected from OMCs. He also submitted that the subsidised value/price collected from the consumer by OMCs cannot be taken as assessable value for the purpose of payment of Central Excise duty. He also submitted that under the concept of transaction value, the actual value received for the goods from OMCs is the assessable value on which duty of Central Excise becomes payable by the appellant. In support of his submission, he relied upon the following decisions:- i. Oil Natural Gas Corporation Ltd. Vs. Commissioner [2015-TIOL-1960-CESTAT-MUMLB] ii. Oil Natural Gas Corporation Ltd. Vs. Commissioner [2010-TIOL-1419-CESTAT-MUM] iii. CCE, Jaipur-II Vs. Super Synotex (India) Ltd. [2014(30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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.] 10.1. The appellant argues that they paid the duty as per price fixed by the Government at Administrated Price Mechanism (APM) and the duty of Central Excise should be charged on this price, which is the subsidized price. 10.1.1. The provisions of Section 4(1) of Central Excise Act, 1944, are very clear. These provisions state about the following elements of the assessable valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant to Oil Marketing Companies does not have sufficient force as the subsidized price, which has been charged by the Oil Marketing Companies from their customers does not fulfill all three conditions (mentioned earlier) given in the provisions of Section 4(1) of the Central Excise Act, 1944. In other words, sale has to be between non-related buyers; and sale has to be for delivery at the time and place of removal and it is to be ensured that in the transaction of sale, price is the sale consideration. Here full consideration, which is in the category of sole consideration, is paid by the buyer OMCs and received by the seller appellant and that only can be taken as assessable value (transaction value) for the purpose of payment of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutes the assessable value on which Central Excise duty is payable. Hon ble Supreme Court further says that the words that gain signification are actually paid. 10.4.1. The case laws cited by the appellant have different facts and do not support the submissions put forward by them. 11. Based on the discussions and the case laws quoted above, the appeal preferred by the appellant, M/s Kochi Refineries Ltd. stands rejected and the impugned order is sustained. 7. Since the issue in the present case is squarely covered by the decision of this Tribunal dt. 06/10/2016 cited supra and by following the ratio of the said decision, we reject the appeal of the appellant and uphold the impugned order. ( Operative part of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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