ORDER
P.C. Jain, Vice President
1. In Appeal No. E/SB/5426/ 93/MAS, question before the SZB of this Tribunal, as framed by it, was “whether in the case of the goods which have been sold at a particular price and where duty is subsequently demanded in respect of the same in terms of Section 4(1) reed with Section 4(4)(d)(ii) the amount of duty which became payable later and which has been demanded can be abated from the sale price or not”[see para 5 of the referring order of SZB].
1.2 Facts leading to the above question are that the appellant (Sri Chak-ra Tyres Ltd.) had declared certain sale prices for the tyres manufactured by it at a certain time. Later on, two price revisions at the higher levels were effected by the appellant’s marketing wing, but the excise personnel of the appellant,reportedly by oversight, failed to declare those higher revisions to the Excise department leading to lesser payment. Department has treated the entire excess realisation in prices on sale of tyres as assessable value and claimed short payment of duty.
1.3 On the other hand, the appellant contends that the excess realisation made by it in sale prices of its tyres during the relevant period included the element of duty. Therefore, that duty element included in those excess realisation should be abated from the said excess realisations and on the balance amount, duty should be charged in accordance with the principles laid down in Section 4(4)(d)(ii) ibid.
1.4 S.Z.B. found that there was a divergence of opinion on the aforesaid question. It noticed the following judgments in favour of deduction of duty element from the prices at which excisable goods were sold.
(i) 1986 (23) E.L.T. 48 (Kar.) [M/s. Mangalore Chemicals & Fertilizers Ltd.]
(ii) 1987 (29) E.L.T. 830 [M/s. Ashok Leyland]
(iii) 1994 (71) E.L.T. 1053 (Tribunal) [Pieco Electronics & Electricals Ltd.]
(iv) 1993 (49) ECR126 (Tribunal) [Byco International and Ors. v. CCE]
(v) 1990 (50) E.L.T. 410 (Tribunal) [Venus Paper Mills Ltd. v. CCE]
(vi) 1993 (21) ETR 631 (Tribunal) [Vapi Paper Mills Ltd. v. CCE]
On the other hand, SZB noticed the following judgment against the foregoing decuction –
(a) M/s. Auto.Industries v. ACCE 1995 (76) E.L.T. 325
(b) ACCE v. Bata India Ltd. 1996 (84) E.L.T. 164 (S.C.)
1.4 At the same time, the SZB has stated that the Apex Court’s judgment in Bata India (supra) is in the context of benefit of Notifications 49/96 & 89/87 under which footwear sold upto a particular value were exempted from duty.
2.1 Facts in the other appeal of M/s. G. Bell & Co., Madras are that the appellants were treating their product “honeyrex” as non-excisable/non-duti-able. It has, however, been held to be dutiable under Tariff sub-heading 1702.30. As regards the quantum of duty, the appellant have contended that sale price realised by them should be treated as cum-duty price and that the element of duty included in that price should be deducted in terms of Section 4(4)(d)(ii) in order to arrive at the assessable value instead of charging duty on the price realised by them treating the same as assessable value, as the Revenue contends. Same judgments, as noted above, have been noticed by the Bench (including Third Member) for referring the same question, as mentioned in para 1.1 above.
3.1 Issue before us is, therefore, already set out as mentioned in para 1.1 above. We may mention, at the outset, that in neither of the two appeals before us, goods were exempted or treated as exempted so as to take into account effect of any notification as stipulated in the Explanation to Section 4(4)(d)(ii) defining the expression “effective duty”,
4.1 Before we deal with the question posed to us, we may set out the relevant provisions of Section 4(4)(d)(ii) :-
“(d) Value in relation to any excisable goods –
* * * *
(ii) does not include the amount of the duty of excise, sales tax and other taxes, if any, payable on such goods and, subject to such rules as may be made, the trade discount (such discount not being refundable on any account whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale.
Explanation – For the purposes of this sub-clause, the amount of the duty of excise payable on any excisable goods shall be sum total of –
(a) the effective duty of excise payable on such goods under this Act;
and
(b) the aggregate of the effective duties of excise payable under other Central Acts, if any, providing for the levy of duties of excise on such goods, and the effective duty of excise on such goods under each Act referred to in Clause (a) or Clause (b) shall be –
(i) in a case where a notification or order providing for any exemption (not being an exemption for giving credit with respect to, or reduction of duty of excise under such Act on such goods equal to, any duty of excise under such Act, or the additional duty under Section 3 of the Customs Tariff Act, 1975 (51 of 1975), already paid On the raw material or component parts used in the production or manufacture of such goods) from the duty of excise under such Act is for the time being in force, the duty of excise computed with reference to the rate specified in such Act in respect of such goods as reduced so as to give full and complete effect to such exemption; and
(ii) in any other case, the duty of excise computed with reference to the rate specified in such Act in respect of such goods.”
5.1 First and foremost controversy is whether the total price realisation made by an assessee when it was paying a lower rate of duty or nil rate of duty to the department and passing on the same to its customers is to be treated as cum-duty price i.e. a price inclusive of the higher rate of duty or some duty, as the case may be, which the department now intends to charge.
5.2 Revenue’s argument for not allowing any deduction or higher deduction towards duty element from the total cum-duty realisation is to the effect that when an assessee sold those goods to its customers, it was either not charging any duty or only charging lower duty. Therefore, its sale-price did not at all include as a matter of fact, any duty or higher duty, as the case may be, in that price. Therefore, only the actual amount of duty, if .any included in that sale price should only be deducted in terms of Section 4(4)(d)(ii). This is the reasoning given in Auto Industries (supra).
5.3 Further argument of Revenue is that if the assessee had been aware of some duty leviable on the goods (when actually he was not charging any duty) he would have increased his sale price because he would have passed on the burden of ‘some’ duty to its customers. Similarly, if he had been aware of the fact that higher duty was leviable (when actually he was charging lower duty), then again he would have passed on the burden of differential duties to its customers thus resulting in higher sale realisation.
5.4 It is, therefore, urged by Revenue that either no deduction of duty should be made from the total price realisation if no duty was initially paid to department or only actual duty charged and paid to Revenue at the first stage should be deducted and not the higher burden of excise duty subsequently.
5.5 Two examples illustrate Revenue’s view point :-
Example I – Suppose 100 is the assessable value. No duty is charged and paid by the assessee initially, sale price (SP) would be 100 + zero =100(SP). Now if it is proposed to charge 10 % duty. Revenue’s contention is that no abatement from the S.P, of Rs. 100/- should be made because no duty was initially charged and included in that S.P. of Rs. 100/-.
Example II – Suppose assessable value is Rs. 100/-. 10% ad valoram is the rate of duty charged and paid. Its S.P. is 100+10=110 (s.p.). Now, if it is proposed to charge 20%, ad valoram duty instead of 10% ad valoram, Revenue’s contention is that only Rs. 10/- as initially charged and paid as duty could he deducted from the s.p. of Rs. 110/- and not the higher element of duty @ 20% ad valoram.
6.1 Assessees’ contention, on the other hand, has been that the price-realisation including duty, if any made by them on sale of their goods to their customers is the total cum-duty price. In terms of contracts or sale agreements entered into between an assessee and a customer, no further recovery of any element of price on account of increased liability towards duty proposed to be fastened by the department on an assessee is possible to be made from their customers. Initial price realisation including duty, if any, on sale of the goods, is all what an assessee has obtained by way of whole sale price of the goods. What higher duty or some duty is payable has to come only from this price realisation in terms of Section 4(1)(a). It is purely a hypothetical consideration to urge, as done by the Revenue that an assessee would have passed on the higher burden, on account of subsequent duty proposed to be imposed by the department. Department is legally bound to abate the duty element, in terms of its subsequent proposal and confirmation thereof, from the sale-price (including duty if any) initially made by the assessees.
6.2 Assessees’ contention in the two examples given in para 5.5 can be illustrated as follows :-
Example I Since no further realisation is possible from its customer, the assessee submits that Rs. 100/- the s.p. of the goods is the cum-duty price for 10% ad valoram duty now proposed to be charged subsequently. In other words, Assessable value would be :
(i) 100 x l00 = Rs. 90.90 [by applying the formula (100 + 10) 100 xS.P.]
(100 + R)
Where R is the percentage rate of the duty on ad valoram basis.
(ii) Now charging duty @ 10% on the above assessable value duty would be 90.90 x 1 = Rs. 9.09 paisa rounded of to Rs. 9.10 paisa, thus satisfying the equation :
(iii) Assessable value + duty = S.P. 90.90 + 9.10 = 100
as set out in the Apex Court’s judgment in MRF’s case reported in 1995
(77) E.L.T. 433 (para 67).
Example II – (i) On the same reasoning, assessable value in the second
example would be –
100/120 x 110 = Rs. 91.67
(ii) Duty 20% on the above assessable value would be Rs. 18.33 Thus satisfying the equation Assessable value + duty = S.P. 91.67 + 18.33 = Rs. 110.00
6.3 Assessees’ further contention is that if the aforesaid plea of treating the original price realisation (including duty, if any) is not treated as a cum-duty price for the duty proposed to be charged subsequently, the assessee would have to pay Rs. 10/-, in each example mentioned above, from his pocket and he is in no position to pass that burden of duty on to its customers, thus violating the fundamental character of excise duty i.e. that it is an indirect tax.
6.4 It is submitted that it is purely a hypothetical consideration to say that if the correct duty had been charged initially, the assessee would have raised the selling price to Rs. 110/- or Rs. 120/- respectively in the two examples given above. No hyopthetical consideration should be allowed to prevail over the actual and extant state of affairs.
7.1 It is submitted by the learned Advocates, Shri V. Sridharan assisted by Shri R. Nambirajan that Revenue’s reliance on Apex Courts’ judgment in Bata India (supra) has no relevance in the instant cases inasmuch as that judgment was in the context of an exemption notification which exempted footwear from whole of duty upto a certain value. No such exemption notification is involved in the present cases. It is also urged that Bata India did not concern itself with determining assessable value from the realised sale-price on the proposal to charge duty subseaqently. It is, therefore, submitted that the ratio of Apex Court’s judgment in Bata India has no application in the present cases before us.
7.2 It is also submitted that Bata India in the first para of its report 84 E.L.T. 164 (S.C.) starts on the premise. “There can be no dispute that if the assessable value calculated according to Section 4 of the Central Excises & Salt Act, comes upto or below the limit set by the notification the assessee will be entitled to the benefit of the notification”. Again in para 6 of the said report, it is stated that “normal wholesale price is the cum-duty price which the wholesaler has to pay to the manufacturer. It is only because the wholesale price is ususally the cum-duty price that Sub-section (4)(d)(ii) lays down that value will not include duty of excise, sales tax and other taxes, if any, payable on the goods…”. He submits that relying on Bata India (supra), Tribunal in the following judgment has held that duty payable subsequently has to be deducted from the initial cum-duty price realisation.
(1) CCE v. Pawan Tyres (P) Ltd. – 1997 (19) R.L.T. 66
(2) Express Rubber Products v. CCE – 1998 (24) R.L.T. 482 .
(3) Honeyrex Products (P) Ltd. v. CCE – 1997 (23) R.L.T. 850
(4) Ajanta Dyeing v. CCE – 1997 (20) R.L.T.848.
(5) New Star Chemicals v. UOl, Pune – 1998 (24) R.L.T. 687 (CEGAT) . .
(6) Amar Dye Chem. Ltd. v. CCE, Bombay – 1997 (19) R.L.T. 376 (CEGAT-SB)
7.3 He has emphasised the following observation of Tribunal in the Express Rubber case (supra) :-
“What is deductible under the above provision is the duty of excise, sales tax and other taxes, if any, payable. The proviso does not contemplate deduction of amount of excise duty, sales tax and other taxes actually paid; Taxes may be paid in advance or immediately or in future depending on the situation . existing in each case. The assumption in three of the decisions of the Tribunal, namely, Auto Industries – 1995 (76) E.L.T. 325 (Tribunal), Ramaraju Surgical Cotton Mills -1996 (82) E.L.T. 86 (Tribunal) and Standard Pencils Pvt. Ltd. -1996 (14) RLT 398 was that the duty of excise should have been actually paid, which is not the language used in the statutory provision. When the statutory provision refers to (duty pf- excise or sales tax payable the same cannot be understood as meaning duty of excise or sales tax actually paid. Ordinarily entire duty payable is paid’ at, the time of clearance and is required to be so paid. Subsequently either the Department or the assessee may realise that duty paid was either short or excess. Such contingencies can be taken care of by initiating action either under Section 11A or Section 11B of the Act. Even in the case of refund it has to be after re-deter-rnination of assessable value as indicated by the High Court of Karnataka in the case of Alembic Glass Industries Ltd. (supra). We see no reason why the same principle is not to be followed under Section 11 A. This decision has clearly emphasised that duty (effective) is to be deducted from the wholesale price which is the normal price collected from the buyers. Burden of excise duty is ordinarily passed on to the buyers and such duty element is collected in addition to the price. This situation is taken care of by Section 4(4)(d)(ii) of the Act by requiring that the element of excise duty has to be deducted in order to arrive at the assessable value. This understanding is in accordance with the decisions of the Supreme Court and High Court of Karnataka referred to above. In these circumstances, we are bound to follow the interpretation given by the Supreme Court and the High Court of Karnataka in the aforesaid decisions and not to follow the decisions of the Tribunal taking a contrary view. Department’s case is not that over and above’ the price collected by the appellant from the buyers element of excise duty has been collected. Excise duty was not collected by the appellant since there was no intention to pay duty. In the present case, duty was paid though under protest before the show cause notice was issued. While, determining the assessable value for the purpose of show cause notice, element of duty should have been deducted in arriving at the assessable value. Even in cases where payment has not actually been made though duty is payable, the same is deductible in terms of the specific language used in Section 4(4)(d)(ii) of the Act. Duty is payable whether actually paid or not. The State should take all steps to collect whenever it is not paid. Duty payable has to be deducted in determining the assessable value though manufacturer had not collected duty from the buyers and had no intention to pay duty. The entire price collected by the manufacturer from the buyer has to be treated as cum-duty price and assessable value arrived at by deducting the duty element. The matter has to go back for the purpose of re-determination of assessable value on this basis.”
7.4 He submits that deduction of subsequent effective duty element proposed to be recovered from the initially realised price (including duty, if any) is now clear from Apex Court’s judgment in Pravara Pulp & Paper Mills v. CCE reported in 1997 (96) E.L.T. 497. In this case, the appellant was paying concessional rate of duty in terms of a notification but he was passing on the burden of full rate of duty to its customers contending that the notification did not envisage that the concessional rate has to be passed on to its customers. Department treating the entire price realisation (including the burden of full rate of duty) as cum-duty price allowed the benefit of lower effective duty actually payable/paid by him in terms of Section 4(4)(d)(ii) ibid., thus raising a demand of duty on the appellant. This demand of duty was sustained by the Apex Court in its judgment supra.
7.5 Learned Advocates for the appellants has further submitted that measure of excise duty is wholesale price of the excisable goods at which the manufacturer selles the goods to a dealer. Wholesale price is cum-duty and taxes prices i.e. price inclusive of excise duty and other taxes. Whatever additional consideration is received over and above the manifested sale price, it is added to the whole-sale price actually received to determine the normal price under Section 4(1)(a) of the Act which is a wholesale price. Value under Section 4(1)(a) is thereafter required to be determined after abatement of excise duty and other taxes payable on the goods. For the proposition that any amount of additional consideration is added to the wholesale price and not to the assessable value directly, learned Advocates rely on Tribunal’s judgment in the cases of-
(i) CCE v. VST Industries 1991 (52) E.L.T. 59
(ii) ITC Ltd. v. CCE 1994 (72) E.L.T. 315
It is further pointed out by the learned Advocates that Revenue’s appeal against Tribunal’s order on the above issue was dismissed by the Apex Court as reported in 1997 (90) E.L.T. A 58.
8.1. Learned Joint CDR Smt. Dolly Saxena, on the other hand, has reiterated that only the actual duty, if any, included by an assessee at the time of sale of the excisable goods, should be deducted. Deduction of higher duty subsequently demanded is not warranted because the higher duty did not form part of the initial price at which the goods were sold. She submits that Tribunal’s reasoning in Auto Industries (supra) is correct and should be adopted.
9.1 We have carefully considered the pleas advanced from both sides, assessable value is required to be determined in terms of Section 4 of the Act. Sub-section 4(d)(ii) envisages deduction of aggregate effective duty payable on the goods under the Act, and all other Acts, if the wholesale price at which goods are sold includes all such excise duties. Wholesale price is the total consideration received by an assessee against sale of excisable goods in wholesale trade. Wholesale price will include the element of duty payable on any goods because such duty forms part of the consideration for sale of the goods according to terms of sale of the goods. If any further demand of duty is created against an assessee and such further demand of duty cannot be passed on to a customer in view of the terms of sale of any goods between the assessee 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). Contention of assessees, as given in examples in para 6.2 above is correct and in conformity with the provisions of Section 4(4)(d)(ii). We take support for our view from the Apex Court’s judgment in Pravara Pulp (supra). Analysis made by the Tribunal in Express Rubber (supra), relevant portion of which has already been extracted above is apt in our view. We endorse the same.
9.2 We are of the view that Tribunal’s decisions to the contrary, for example in Auto Industries (supra), are not correct.
9.3 In view of the foregoing discussion, we answer the question posed to this Bench and set out in the beginning of this order, in affirmative.
Lajja Ram, Member (T)
10. With due respects, I record the following order.
11. The question for consideration before the South Zonal Bench, Madras (now Chennai) was whether in the case of the excisable goods which had been sold at a particular higher price, while Central Excise duty was paid on the declared lower price, and where Central Excise duty is subsequently demanded in respect of the differential price in terms of Section 4 (1) read with Section 4(4)(d)(ii) of the Central Excises Act, 1944 (hereinafter referred as the ‘Act’), the amount of Central Excise duty which became payable later and which had been demanded, could be abated from the sale price or not, In view of the divergence of views between defferent benches of the Tribunal, the matter was referred to the Larger Bench.
12. In the present case, on verification of the invoices/stock transfer notes of M/s. Srichakra Tyres Ltd. it was detected that during the period December, 1991 to September, 1992, the appellants had charged and collected extra amount over and above the value declared in their price lists. Total additional consideration received was found to be Rs. 3,77,254.41. The appellants had admitted that they had revised their prices without any declaration to the Department on two occasions and that they had not paid the differential duty arising out of such revisions. They had however, contended that the revised higher price not declared to the Department should be taken as the cum-duty price, and the assessable value should be re-determined taking the revised prices as cum-duty prices. The Collector of Central.Excise, Madurai, who had adjudicated the matter observed that the extra money collected by the assessee was necessarily to be treated as additional money consideration received by the assessee and that the extra money collected was to be included in the assessable value for determining the actual duty liability. He had observed that this position was explained to the assessee’s representative at the time of personal hearing and the assessee’s representative had accepted this position.
13. Under Section 4 of the Act, 1944, the Central Excise duty is chargeable with reference to the assessable value. In a case where the declared price by the assessee is inclusive of Central Excise duty, the assessable value has to be determined as per provisions of Section 4 of the Act and the Central Excise (Valuation) Rules, 1975. The element of central excise duty included in the declared price is a question of fact and the assessable value arrived at from the declared price is a question of determination. The determination had to be as per provisions of the law. In a case where the assessable value had been determined on the basis of the declared price, the assessee had to seek re-determination of the assessable value in case the declared price is. sought to be increased. In case where non-declared higher price is charged while the Central Excise duty had been paid on the basis of the declared lower price, the matter could not be left to be detected by the Department at a later stage. On such detection, the plea of the assessee to extend the benefit of re-determination of assessable value on the basis of such non-delcared higher price, was not legally permissible. It is a settled position in law that what is not included could not be excluded. No Central Excise duty had been paid on the differential value and to that extent, the quantum of Central Excise duty evaded had to be calculated with reference to the differential value charged over and above the declared price.
14. The matter is covered by the Supreme Court’s decision in the case of Asstt. Collector of Central Excise v. Bata India Ltd. -1996 (84) E.L.T. 164;(S.C). In that case the Counsel for M/s. Bata India Ltd. had contended that if excise duty was payable on the shoes, then the amount of excise duty had to be deducted from the wholesale price in order to determine the assessable value of the shoes. It was argued that if such amount of excise duty was deducted from the wholesale price (which was in excess of the exemption limit) then the assessable value will come within the limit set by the relevant exemption notification. It was further contended that even in such cases when by deducting excise duty payable on goods, the value had been arrived at the price of Rs. 60 or less, the question of levying excise duty would not arise (refer para 3 of the judgment). In para 5, it is recorded as under :-
“Mr. Shanti Bhushan has contended that if excise duty is payable on these shoes, then the duty element has to be deducted from the wholesale price in order to ascertain the assessable value under Section 4.”
In para 6, the Hon’ble Supreme Court ruled that they were unable to.up-hold that contention “because the normal price charged by the manufacturer at the time and place of removal of goods to the wholeseller is treated by the Act to be the value of the goods. Sub-section (1) (a) of Section 4 makes it clear that such value shall…be deemed to be the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade…’. Therefore, the normal wholesale price of the goods must be deemed to be the value of the goods”.
The Hon’ble Supreme Court held that “there cannot be any question of deduction of duty payable on the goods from the wholesale price because as a matter of fact, no duty has actually been included in the wholesale price” (refer para 6). In para 8, the Apex Court observed “But in a case where the wholesale price is not inclusive of any duty payable on the goods then no question of deduction of any duty for determination of value will arise.”
In para-14, it had been held as under :-
“Unless it is shown by the manufacturer that the price of the goods includes an element of excise duty payable by him, no question of exclusion of the duty element from the price for determination of value under Section (4)(4)(d)(ii) will arise”.
In para 20, the Hon’ble Supreme Court concluded in that case “in order to claim this deduction, the assessee will have to show that the value of the goods become more than Rs. 60 per pair because of inclusion of excise duty. If that cannot be done, there is no question of deducting any duty payable on the goods manufactured by the assessee”.
15. In the case of Standard Pencils Pvt. Ltd. v. Collector of Central Excise, Madras – 1996 (86) E.L.T. 254 (Tribunal), the Tribunal had held that the abatement of excise duty from the price was permissible only where duty was paid on the goods. Para 8 from that decision is extracted below :-
“8. In regard to deduction of duty payable from the price, this came up for decision before Tribunal in the case reported in 1995 (76) E.L.T. 325. The Tribunal held that since the price did not include element of duty, there could be no question of allowing deduction of duty. Such deduction can be allowed only in case of cum-duty price. Tribunal took the same view in case of Ramaraju Surgical Cotton Mills v. CCE, Madras – 1996 (82) E.L.T. 86. Since admittedly no duty was paid on the goods, no deduction towards duty payable could be claimed. Allowing such deduction in case of manufacturer who claims exemption to which he is not eligible would place another manufacturer who does not claim such exemption at a disadvantage. We, therefore, reject this plea.”
In the case of Ahmedabad Advance Mills Ltd. v. Collector of Central Excise, Ahmedabad – 1996 (17) RLT 701 (Tribunal), it had been held that the extra amount collected was to be added to the assessable value. Para 9 from that decision is extracted below :-
“9. The above circumstances lead to the definite conclusion that extra amounts were received only in regard to certain varieties of fabrics and not from certain buyers and the reasons for collecting such extra amounts as indicated in the debit notes and accounts were contradictory. The term regarding requirement of payment of such extra amount was conceived in secrecy and was indicated in secret code in the Kabalas. Secretary, invariably is the badge of fraud. The Kabalas did not show that any extra work was done or extra facility was offered by the appellant justifying such extra payments. The irresistable inference, in these circumstances, is that these extra amounts were collected not on account of extra folding, stamping or packing or on account of DN commission charges, but as additional amounts for the sale of fabrics. Hence, such amounts must be included in the assessable value under Section 4 of the Act. Point answered accordingly.”
In the case of Orient Fabrics Pvt. Ltd. v. Collector of Central Excise, Ah-medabad – 1997 (20) RLT 173 (Tribunal), it had been held that the amount recovered through debit notes was to be added to the assessable value (Head Note). In the case of Rohit Mills Ltd. v. Collector of Central Excise, Ahmedabad – 1997 (23) RLT 19 (Tribunal), it had been held that the differential price collected under the debit notes was to be added to the assessable value (refer para-11 of the decision).
16. In view of the above discussion in the case of the excisable goods which had been sold without approval at a particular non-declared higher price, while central excise duty was paid on the declared lower price and the matter of evasion of central excise duty is subsequently detected and central excise duty is subsequently demanded in respect of the differential price in terms of the Section 4 (1) read with Section 4 (4)(d)(ii) of the Central Excises Act, 1944, the amount of duty demanded could not be abated from the sale price. The question posed to this Bench as set-out in the beginning of the order proposed by the ld. Member (T) (now Vice President) is answered in the negative.
