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TMI Blog1992 (8) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the plastic scrap in the sale price of the radio/transistor sets sold along with the set (ii) non-inclusion of handling charges recovered by the respondents from their dealers and (iii) higher deduction to-wards sales lax from the sale price of the radio/transistor set than the actual paid by the respondents. 1.3 On the basis of the above allegations, seven show cause notices for different periods and for different amounts as shown below were issued by the department: Show Cause-cum-Demand Notices issued to M/s. National Radio Electronics Company Limited, Andheri (East), Bombay-400 093 by the Superintendent, Central Excise concerned as under: 1.4 On adjudication, the aforesaid amounts of duty in respect of the 7 show cause notices were confirmed by the Assistant Collector, Central Excise, Bombay, Division-K. 1.5 On appeal by the respondents herein to the lower appellate authority, namely, the Collector of Central Excise (Appeals), Bombay, the respondents herein succeeded. 1.6 Hence this appeal by the department. 2.0 In order to appreciate the subsequent contentions made on both sides, we also give below the calculations as to how the department has ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, duty at the rate of ₹ 24/- per set was leviable as against ₹ 12/- per set paid by the respondents. (b) The respondents have two types of dealers namely A and B. Price charged to 'A' dealers inclusive of Central Excise duty was ₹ 157/- and that to 'B' dealers was ₹ 160/-. Sales tax was being paid at first point of sale on the price actually charged by the respondents to dealers at the rate of 12%. Actual incidence of sales tax in case of 'A B' dealers, therefore, according to the department, works out as under: Since the transactions with 'A' type dealers constitutes the bulk of the sales and would, therefore, form the standard pattern of sale, thus the deduction of sales tax has to be limited to ₹ 19.03p to arrive at the price of the wireless receiving set at the point of sale to the consumer rather than ₹ 19.39p claimed by the respondents. 3. The respondents learned advocate, Shri. D.B. Shroff apart form contending against the inclusion of price of the PVC strap in the price of the wireless receiving set as also against inclusion of the price of handling charges and deduction of lower amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t above, that the department has assumed 'suggested retail price' at ₹ 214/-, at ₹ 215.65 p and ₹ 217.90 p. This is not based on any evidence that the respondents herein had any lime suggested such a retail price. The department is merely assuming that they (Respondents) would have suggested a higher retail price at ₹ 2141-, at ₹ 215.65 p and at ₹ 2 7.90 p. We cannot go on mere assumptions. 'There is no dispute that the actual suggested retail price is ₹ 202/-, ₹ 203.65 p and ₹ 205.19 p. Now the department on the basis of its calculation is demanding Central Excise duty at ₹ 24/-. As the aforesaid suggested retail price has to be reduced by the incidence of sales tax as well as the actual amount of Central Excise duty demanded by the department, from that angle the price of the set would come down below ₹ 165/-, as mentioned above, varying from ₹ 158.36p to ₹ 162.03p. Explanation to the Notification 46/74 is very clear and we agree with the findings of the lower appellate authority. On this ground alone, therefore, the entire amount of duly demanded by the department would collapse. 4.1 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hand, relics on-- (1) 1977 ELT J 133 : 1977 Cen-Cus 3ID (Bombay)--International Tractors Co. of (Bomb.) India Ltd. v. UOI (2) 1979 ELT 546 : 1980 Ccn-Cus 232D--Jyoti Ltd., Baroda v. UOI (3) T.I. Miller Ltd. v. UOI (4) 1987 (32) ELT 443 : 1987 (13) ECR 1135 (Cegat SB-A)--Webel Telecommunications (P) Ltd. v. C.C.E., Calcutta. (5) Universal Luggage Co. Ltd. v. CCE. (6) Mccnicll Magor Ltd. v. CCR, Calcutta. (7) 1979 ELT J 145--Arnkar Engineering Works v. Supdt. of Central Excise. He has also submitted that Richer Goodearth's Judgment relied by the learned JDR cannot be made applicable here because the PVC strap does not add to the marketability of the wireless receiving set as sell' starter was held to be so in the case of tractors manufactured by Richer Goodearth Ltd. On the same reasoning Tribunal's Judgment in Lawkim's case is also relevant. Andhra Pradesh High Court's Judgment in the case of Khaitan Fans relating to inclusion of the value of regulators in the value of electric fans is not relevant because the value of regulator was taken into account in view of the description of the Tariff Entry relating to electric fans which inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale price of the transistor sets. The lower appellate authority on the aforesaid submissions has held the point in favour of the respondents. The said authority has also referred to case of Ballu Lorry and Radio Service, Madurai, decided by the Appellate Collector of Central Excise, Madras wherein it has been held that a manufacturer could not be held responsible for a dealer's action in charging higher price other than that prescribed. The Appellate authority, however, has found that if the respondents herein can satisfy the proper jurisdictional Assistant Collector to the effect that collection of handling charges did not effect the consumer price, it need not be included. We are of the view on this point that it is essentially a question of fact to be determined with reference to the records whether the handling charges collected by the respondents herein have been passed on to the customers of the transistor/radio sets. No fault can be found with the finding of the said lower appellate authority; essentially the mailer has been remanded by him on this limited aspect of satisfaction of the Assistant Collector on the basis of the records on this point. (iii) Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands issued and confirmed, hence the limitation of lime is not the subject matter of this appeal. The respondents, however, have contended that allegation of suppression is only in the last show cause notice dt. 10.1.1978 for the period 16.4.1974 to March 1975. There is no allegation of suppression in the other six show cause notices. They have submitted that it cannot be considered to be suppression because they were under the bonafide belief that value of straps is not includible . The learned advocate for the respondents, therefore, submits thai the allegation of suppression even in the last show cause notice does not stand. So far as the other show cause notices are concerned, he submits that they are partly time barred and partly within time. 4.6 It would not be appropriate for us to give any finding of fact as to which of the show cause notices are barred by lime and to what extent in the absence of any finding to that effect by the lower appellate authority. We, therefore, leave the matter as it is. 4.7 However, as stated by us earlier our finding in respect of the common point regarding deduction of ₹ 24/- by way of example in the case of TAPI Model, the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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