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TMI Blog2019 (2) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Initially, this matter came up before this bench, the matter was remanded back to the Original Authority vide Final Order No. 1158/2009 dated 23.09.2009 for a fresh decision after affording the appellant to give an opportunity to present their case. Thereafter, the original authority passed a denovo adjudication order confirming the demand along with interest and imposing penalties. On an appeal, the First Appellate Authority upheld the Order-in-Original. Hence this appeal. 3. Facts of the case in brief are that the appellant is a manufacturer of printed and laminated BOPP films. This film is used by their customers for packing food articles, etc. The appellant has been paying duty on BOPP film manufactured by them and cleared to their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o contracts and the appellant could not show any evidence that the cylinder charges in debit notes was towards the liquidated damages. It is further held that the Commissioner cannot demand duty on any amount as additional consideration without relating the same to clearances of particular excisable goods. On the question of extended period of limitation, it was held that unless these amounts are established to be liquidated damages it cannot be said that longer period of demand does not apply. 4. During the denovo proceedings, the appellant produced letters from their clients giving details of the debit notes which were raised on them by the appellant and the reason for raising them. These letters covered not the entire demand but some po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them were towards the sale of their products. In para 20 of the order of Adjudicating Authority, the debit note dated 16.11.2002 raised on M/s Ravi Food Limited was referred and it was wrongly inferred that these were related to the excisable goods. The letter by M/s Ravi Food Limited clearly stated that the cylinders referred to in the debit note that the charges were towards liquidated damages for discarded cylinders. The Learned Counsel relies on the following case laws: i) Essel Propack Ltd. Vs. Commissioner of CE, Thane-1 [2016 (341) ELT 470 (Tri-Mumbai)]. ii) Vimlachal Print & Pack Pvt. Ltd., Vs. Commissioner of CE, Ahmedabad -II [2017 (6) GSTL 496 (Tri-Ahmd)] On the question of limitation, the appellant argued that the informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers which the appellant charged from their customers should part of the assessable value being the additional consideration for sale of the BOPP films (since the cylinders are made for each customer). It is the case of the party that the amounts which they covered through debit notes do not part of the assessable value as they are not additional consideration for their sale of the product. On the other hand, these amounts were recovered from their customers as liquidated damages only when the customers did not place the orders as agreed to. Therefore, the cost which they incurred in getting the cylinders engraved as per the requirement of the customers was recovered from them. Therefore, these amounts cannot be included as additional consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the debit notes were towards liquidated damages such amounts cannot be included as additional consideration for sale of final products. Accordingly, we hold that of the total value of Rs. 43,11,997/- collected by the appellant through various debit notes, an amount of Rs. 35,96,060/- needs to be deducted as these amounts clearly pertain to liquidated damages and are not related to sale of goods. As far as the remaining amount is concerned, as there is only evidence that these amounts have been collected by the appellant from their customers and there is no evidence that these amounts pertain to any other transaction between the appellant and customer we find that this is a consideration for sale of their final product. Accordingly, the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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