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TMI Blog2025 (1) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. E/27329/2013, it is evident that the appellant was filing ER-1 return from time to time and the omission on the part of appellant to pay the duty as per the Notification was not noticed by the department and only when it is noticed, they failed to demand within the statutory period. Thus considering the delay of issuing the notice, the demand under Appeal No. E/27329/2013 is barred by limitation. As regarding the Appeal No. E/27330/2013, it is found that the appellant is liable to pay duty for the relevant period. However, as regarding the cum duty benefit, the issue was considered by this Tribunal in the matter of Shri Chakra Tyres Ltd., [ 1999 (3) TMI 100 - CEGAT, NEW DELHI ] and it is held that ' assessable value is requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by extending the benefit of cum duty. 2. The Appellant is engaged in offset printing and also manufacturing certain excisable goods. Among them the Appellant is manufacturing printed paper tags falling under Chapter Heading 4821 10 10. The said goods were subject to nil rate of duty as per the Notification No. 10/2003 dated 01.03.2003. Thereafter, as per the Notification No. 10/2006-CE dated 01.03.2006, it was subject to levy of 8% and thereafter the Appellant was paying said excise duty at the rate of 8%. Thereafter, the excise duty was reduced vide Notification No. 58/2008- CE dated 07.12.2008 to 4% and Appellant started paying 4% excise duty. Thereafter, as per the Notification No.17/2009-CE dated 07.07.2009, the rate of duty on the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from the provisions of Section 37C of the Central Excise Act, 1944 in serving the SCN to them as the first mode of service is by tendering the document or by sending it by registered post, if only when the said mode fails, then only the provisions of clause (b) of sub-section (1) of Section 37C could have been invoked. Though it is claimed that the SCN was sent on 09.06.2011 by registered post same was received by the Appellant on 10.06.2011 and due to failure of the Respondent to comply with the service of the notice within the statutory period, demand is barred by limitation. 4. As regards the quantification of the duty payable by the Appellant, the Ld. Counsel submits that the benefit of explanation to Section 4 of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards duty liability, appellant accepted their omission in the paying duty. However, they are aggrieved only on denial of the benefit of price cum duty. As per the appellate authority, it is denied since the appellant has not followed the price cum duty procedure, while declaring their goods during the period covered by the SCN s. Facts being so, the Adjudication authority rightly considered the issue and duty was confirmed. 6. Heard both sides and perused the records. 7. We find that it is an admitted fact that there is an omission on the part of appellant to pay excise duty as per the prevailing rate and for that reason the demand is sustainable and they have paid said amount. As regarding the demand against Appeal No. E/27329/2013, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see and a customer, the original consideration (including duty, if any) received by an assessee for sale of the goods in wholesale trade, has to be taken as cum-duty price for the purpose of demand of higher duty subsequently. Any hypothetical consideration that the sale price would have gone up had correct duty been paid in the first instance cannot, in our opinion, be made the basis for non-abatement of differential duty from the realised sale price. We have to take into account the facts as they are, not what they might have been. Total duty proposed to be demanded shall have to be abated from the cum-duty price actually received and liable to be received as a consideration for sale of goods. This is the mandate of sub-section 4(d)(ii). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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