ORDER
G.R. Sharma, Member (T)
1. Commissioner, C. Excise, Chandigarh-I has filed this appeal assailing the order dated 21-9-2001 passed by the learned Commissioner (Appeals). The learned Commissioner (Appeals) had decided the issue regarding the additional consideration of cum-duty price by following the decision of the Larger Bench of this Tribunal in the case of Srichakra Tyres Ltd. and others v. CCE reported in 1999 (108) E.L.T. 361 explaining the ambit and scope of Section 4(4)(d)(ii) of the Central Excise Act, 1944.
2. The facts of the case are that the respondents herein are engaged in the manufacture of polyester filament yarn. Scrutiny of RT-12 returns revealed that the respondents had excluded the twisting charges from the assessable value while computing duty liability at the time of clearance of polyester filament yarn. It was alleged that the respondents had short-paid duty amounting to Rs. 4,86,200/- on the said twisting charges amounting to Rs. 8,45,965/-. Accordingly, show cause notice was issued asking the respondents herein as to why Central Excise duty of the above amount should not be demanded from them and why penalty should not be imposed. The Assistant Commissioner confirmed the demand and held that the respon-
dents herein shall have to deposit the amount of duty along with interest if the amount is not paid within three months. Respondents herein filed an appeal before the Commissioner (Appeals) who, following the decision of the Larger Bench held, “Accordingly, I accept the plea of the respondents and hold that the price charged for the sale of the goods are to be treated as cum-duty price and the amount of demand is to be calculated after allowing abatement of Central Excise duty payable.”
3. Arguing the case for the appellant, Shri Hitesh Shah, learned DR submits that the decision of the Larger Bench of this Tribunal in the case of Srichakra Tyres Ltd. has not been accepted by the Department and that the S.L-P. has been admitted by the Apex Court; that the directions of the learned Commissioner (Appeals) in the impugned order to re-work the duty are incorrect. He submitted that in the case of Bata India Ltd. reported in 1996 (84) H.L.T. 164, the Apex Court held that there cannot be any question of deduction of duty payable on the goods from wholesale price because as a matter of fact no duty was included in the wholesale price. Learned DR also submitted that the Tribunal in its judgments reported in 1996 (86) E.L.T. 245 and 1996 (82) E.L.T. 86 held that abatement of excise duty from the prices was permissible only where the duty was paid on the goods; that the duty actually paid can be deducted from the assessable value; that excise duty cannot be abated if it was not paid.
4. None appeared for the respondents.
5. We have heard the submissions of the learned DR. We have also perused the evidence on record as also the case-law. We note that the issue in the instant case is whether the twisting charges should be treated as cum-duty charges or not. We find that similar issue came up before the Larger Bench of this Tribunal in the case of Srichakm Tyres Ltd. cited above where this Tribunal held that any additional consideration is to be treated as cum-duty price. Thus we find that Larger Bench decision squarely covers the facts of the present case.
6. Insofar as the appeal of Revenue before the Apex Court is concerned we note that the Larger Bench Order of the Tribunal has not been stayed and therefore, this order of the Larger Bench of the Tribunal is to be treated as precedent.
7. Insofar as the judgment of the Hon’ble Supreme Court in the case of Bata India Ltd. is concerned we note that in the case of Bata India Ltd. the Apex Court was considering admissibility of exemption on the price of footwear and hence it was a different issue and not an issue of interpretation of scope of Section 4(4)(d)(ii).
8. Insofar as the other decisions of the Tribunal cited and relied upon by the Revenue are concerned we note that they are not the decisions of the Larger Bench and therefore, the Larger Bench decision shall prevail over the decisions of the Division Benches.
9. Having regard the above findings we uphold the impugned order and reject the appeal of Revenue.