CCE Vs. THERMOTECH LTD.

JUDGEMENT

(1.) Revenue has filed this appeal being aggrieved by the order of the Ld. Commissioner (Appeals) ordering re -quantification of duty on the basis of cum duty price.

(2.) The facts of the case in brief are that the respondents herein are engaged in the manufacture of excisable goods. It was alleged that during the period Nov. 1993 to 1995 -96, the appellants cleared excisable goods clandestinely without accounting for the same in the statutory records on duplicate/parallel set of invoices and had evaded Central Excise Duty to the tune of Rs. 77,04,883. The Commissioner of Central Excise while adjudicating the case confirmed demand of duty of Rs. 58.39 lakhs against an alleged evasion of duty of Rs. 77.05 lakhs. The Central Board of Excise reviewed the order of the Ld. Commissioner whereunder he had allowed abatement taking the entire consideration of the clandestinely cleared goods to be cum duty price.

(3.) Arguing the case for the appellant Shri R.D. Negi, Ld. DR submits that the decision of the Ld. Commissioner about treating the price as cum -duty price was contrary to the provisions and scope of Section 4 of Central Excise Act. He submitted that price is not defined in the Act; that the price in the context in which it has been referred to Section 4(1)(a) is the gross amount of consideration that is received by the seller from the buyer in the course of wholesale trade; that where the price is inclusive of the amount of duty of excise, Section 4(4)(d)(ii) expressly provides that value does not include the amount of duty of excise payable on such goods. He submitted that the Ld. Commissioner did not take note of the Apex Court decision in the case of CCE v. Bata India Ltd. . Ld. DR submitted that the Ld. Commissioner should have noted that the cum duty price is relevant only in such cases where the assessee is paying Central Excise Duty and not in the present case where no Central Excise Duty was being paid. Ld. DR submits that the Ld. Commissioner should have taken into consideration Paras 10, 11 and 14 of the decision of the Apex Court in the case of Bata India Ltd. cited above. Ld. DR submitted that in view of the above submissions, the appeal may be allowed.