LAWS(CE)-2004-2-384

CCE Vs. CREATIVE GRAPHICS

Decided On February 13, 2004
CCE Appellant
V/S
Creative Graphics Respondents

JUDGEMENT

(1.) THIS appeal has been filed by the revenue against Order -in -Appeal No. 197/99 (M -III) dated 30.8.99 by which the Id. Commissioner (Appeals) has directed the Deputy Commissioner to re -determine the assessable value in accordance with CEGAT's decision in the matter of Express Rubber Products v. CCE, Vadodara as reported in .

(2.) THE revenue has come in appeal on the ground that portion of the Order -in -Appeal No. 197/99 dated 30.8.1999 passed by the Commissioner (Appeals), Chennai directing the lower authority to recalculate the duty treating that the sale price as cum -duty -price inasmuch as under Section 4 of the Central Excise Act 1944 the Central Excise duty is chargeable with reference to the assessable value. In a case where the price has been declared by the assessee as inclusive of Central Excise Duty, the assessable value has to be determined as per provisions of Section 4 of the Act. 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 which is to be as per provisions of the law. Revenue further contend that in the instant case the respondent had not followed any Excise formalities and had not declared anything to the department and had cleared the goods with a clear intention to evade payment of duty. Such being the fact, the plea of the respondent to extend the benefit of re -determination of assessable value treating the sale price as cum duty price is not acceptable and is not legally permissible, contends the revenue. Further no Central Excise duty has been paid initially and hence the question of treating the price as cum duty price does not arise at all. The respondent had agreed upon the value as shown in the invoices in question and had paid the amount demanded. From the invoices it is clear that the price indicated does not include the duty element. They have relied on the judgements rendered by the Tribunal in the case of Standard Pencils Pvt. Ltd. v. CCE 1996 (86) ELT 254 (T) : 1996 (66) ECR 812 (T) wherein the Tribunal has held that the abatement of Excise duty from the price was permissible only where duty was paid on the goods and in the instant case no duty was paid and the clearance of goods was with a clear intention to evade payment of duty, and the price did not include the element of duty, hence there should be no question of allowing deduction of duty. Further the issue of sale price to be treated as cum duty price was not accepted by the Board and Commissioner, Madurai was directed to file an appeal in the case of M/s. Sree Chakra Tyres Ltd. on the decision of the Larger Bench of the Tribunal bearing No. A/ 157/ 158/98 dated 12.3.1999.

(3.) NONE appeared on behalf of the respondent -assessee in spite of services of notices by the Assistant Commissioner of Central Excise, Vellore Division, Vellore. Therefore, I am proceeding to decide the case on merits based on the available records.