9911796707
TMI Blog2024 (2) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturer of toughened glass, laminated glass, insulated glass etc. classifiable under various tariff items of Chapter 70 of the first schedule of Central Excise Tariff Act, 1985. During the course of the audit for the period from December 2006 to January 2008, it was observed that the Appellant has disclosed 'Other Income' of Rs.5,82,065/- on account of insurance charges recovered in excess from the customers but has not deposited duty on the same. On the basis of the aforesaid audit objection, a letter dated 06.11.2008 was issued directing the Appellant to deposit the excise duty/service tax on the sale under 'Business Auxiliary Service' along with interest. By letter dated 01.12.2008 the Appellant replied that the excess amount cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Order-In-Original. Being aggrieved, the assessee-appellant is in appeal before the Tribunal. 3. The learned Advocate appearing on behalf of the Appellant submits that the learned Commissioner (Appeals) erred in law in holding that the excess amount recovered by the Appellant forms part of the assessable value. He vehemently argued that there is no allegation in the SCN or finding in the Order-In-Original that manufactured goods were not cleared at factory gate or that the Appellant and buyers are related persons or that price is not that sole consideration for sale. On the contrary, he submits that that goods were sold at factory gate, Appellant and buyers are not related persons and price charged is the sole consideration of sale, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision, the view taken by the Tribunal cannot be sustained.
2. Consequently, the appeals are allowed and the impugned judgment of the Tribunal is set aside."
In the above decision, it has been held that the excess amount represents profit element. Once this is so, the same cannot be subjected to excise duty inasmuch as the duty is leviable on manufacture of goods and not on profit. By respectfully following the ratio as laid down by the Hon'ble Supreme Court, we set aside the impugned Order-In-Appeal and restore the Order-In-Original No.24/AC/D-II/N-II/2016-17 dated 25.01.2017. The appeal filed by the Appellant is allowed with consequential relief, if any, as per law.
( Pronounced in open court on 14. 02. 2024 ) X X X X Extracts X X X X X X X X Extracts X X X X
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