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TMI Blog2024 (10) TMI 1627X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the request was not analyzed and no finding on the same was given in the said order. To that extent, there is a mistake apparent on the face of the records due to oversight which requires to be corrected. Hon ble Supreme Court in the appellant s own case [ 2002 (2) TMI 101 - SUPREME COURT ] held that 'the Tribunal was right in directing that the respondent is entitled to the benefit of Section 4(4)(d)(ii) of the Central Excises Salt Act.' The ROM application requires to be accepted. The last Para of the Final Order shall now read as follows in place of the existing para: '16. In view of the above, both the appeals are partly allowed restricting the demand to normal period and setting aside the penalty. However, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submits that in the departmental proceedings in an identical matter, for a subsequent period, learned Commissioner (Appeals) vide order dated 26.12.2016 held that benefit of cum-duty shall be extended; lower authorities followed this principle in the orders dated 28.04.2017 and 23.03.2021 for the subsequent periods; Department has not challenged the order of the learned Commissioner (Appeals) and therefore, Revenue is precluded from arguing the case on merits. 4. Shri Narinder Singh, assisted by Shri Yashpal Singh, learned Authorized Representatives for the Department, opposes the application and submits that the bench has held categorically that the pool lifting charges form part of transaction value and therefore, they are to be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aser for the sale of the goods. True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to re-imburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer. It is only as part of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or otherwise, under which the purchaser would be liable to pay the amount of excise duty to the dealer. And, on this reasoning, it would make no difference whether the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, in the present case, the assessee will have to show as to how he has determined the value. What the appellant has really done in the instant case has to be examined. Whether the price charged by him to his customers contains profit element or duty element will have to be examined. As stated above, this examination is warranted because, in the present case, one cannot go by general implication that the wholesale price would always mean cum-duty price, particularly when the assessee had cleared the goods during the relevant years on the basis of the above exemption notification dated 1-3-1997. 7. We find that the above judgment though rendered in the context of un-amended Section 4, lays down the principle for arriving at the cum-d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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