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2004 (11) TMI 217

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..... ations. Show Cause notice was issued for the period July, 1997 to December, 1997 demanding Central Excise Duty of Rs. 3,08,538.00 which was issued by the Asstt. Commissioner vide Order-in-Original dated 17-6-1998. Appeal was filed against the said order. Commissioner of Appeals who vide Order-in-Appeal dated 23-3-2000 remanded the case back for de novo consideration. The Adjudicating Authority again confirmed the demands amounting to Rs. 3,08,538.00 under Section 11A and also charging interest under Section 11AB and imposing penalty under Rule 173Q vide Order-in-Original dated 6-12-2001. The Appellant preferred appeal against the order and the Commissioner of Appeals, Central Excise, Mumbai rejected all the Three Appeals. 2. Heard Shri S. .....

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..... n 4 shall be declared in the invoices themselves. Thus, effectively, each invoice was for all purposes a Price Declaration itself. The system of assessment of invoice value was also recognized by Central Board of Excise and Customs in Circular No. 62/62/1994, dated 20th September, 1994. The second proviso of the Rule 173C(1) provided for filling of declarations by the assessee of the type mentioned therein. The Appellant was covered by the second proviso, such price declarations were being filed by it under the said second proviso to Rule 173C. He submits that since the assessable values were being declared on each invoice in accordance with the provisions of Section 4 read with Rule 173C(1), the price declarations were being taken as merel .....

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..... - respectively under Rule 173Q. The Commissioner (Appeals) by a consolidated Order dated 22-10-2002 dismissed the appeals. 3. He submits that when there is no dispute with the price charged from the buyers, were those mentioned in the invoice, no duty can be demanded simply because revised price declaration were not filed. He submits that there is no provision of Law in the Central Excise Act, 1944 or in the Rules framed therein on the basis of which assessable value of the goods cleared during the said subsequent period of December 1994 to September, 1998 could be determined based on the said old price declaration effective from 1st June, 1994. The assessable value during the said period of December 1994 to September, 1998 was based on t .....

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..... CCE) (iii) Reported in 2002 (147) E.L.T. 815 (T) = 2002 (52) RLT 980 (Hindustan Engg. Industries Ltd. v. CCE) He, further, submits that in the instant case there has been no contravention of any of the provisions of law and levying of penalty under Rule 173Q was illegal. Therefore, he submits that the appeal may be allowed. 4. In reply learned SDR submits that filing of the declaration is mandatory and he reiterates and supports the order passed by the authorities below. 5. In present case the appellant had not charged any higher price from any buyer. There was no such allegation in show cause notice nor any such finding has been given by the Assistant Commissioner or Commissioner of Appeals. The demand has been raised on o .....

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..... 4 of CEA, 1944 - Normal price - Rule 173C of C.Ex. Rules, 1944 - Excise duty was paid on actual price charged, though it was lower than price declared under Rule 173C - no allegation of collection of differential price - actual price charged is normal price under Section 4 - demand based on price declared under procedural Rule 173C is not sustainable - appeal allowed. (ii) Similar view has been expressed in the case of Vidhya Packaging Industries Pvt. Ltd. v. Commissioner of Central Excise, Allahabad reported in 2001 (130) E.L.T. 631 (T) = 2000 (39) RLT 377, CEGAT Delhi has held that : Assessable value - Section 4(1)(a) of CEA, 1944 - Invoice price - higher value declared in the price declaration but the goods were actually sold .....

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..... nvoice flow back to them from the buyer. Under such circumstances, the price at which the goods were sold to the others was the sole consideration for the sale as contemplated by Section 4(1)(A) of the Act and, therefore, the Department was not justified in claiming the differential duty on the basis of price declaration. 6. In present case the demand in show cause notice was not due to non production of invoice but it was simply by relying on the old declaration. The old declaration was the sole basis for differential demand. When invoice details were given in the show cause notice, obviously all the invoices were lying with the Department. The Commissioner has also observed in his order that "The Department did their job by issuing the .....

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