Full Judgment
2. We heard Shri S.M. Tata, learned SDR for the Revenue and Shri Pravin Sharma, learned Advocate for the Respondents, M/s. Kanohar electricals.
3. The Respondents are manufacturing electrical transformers. A show cause notice was issued to them for demanding the duty on transformer oil used in the repair of transformers. The Commissioner (Appeals), under the impugned order, has treated the value as cum-duty value in terms of the decision of the Supreme Court in the case of CCB v. Maruti Udyog Ltd. . It has been contended by the Revenue that deduction of duty payable on the goods from the wholesale price is not permissible because no duty has actually been paid by the Respondents.
The Revenue has placed reliance in the case of Assistant Collector of Central Excise v. Bata India Ltd. 4. The issue involved in this appeal has been settled by the Larger Bench of the Tribunal in the case of Srichakra Tyres Ltd. v. CCB wherein it has been held that if any further duty of excise is created against an assessee and such further demand of duty cannot be passed on to a customer in view of terms of sale of any goods between the assessee and the 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. The Tribunal has, therefore, held that "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 the sale of goods. This is the mandate of Sub-section 4(d)(ii)". The appeal, filed by the Revenue, has been dismissed by the Supreme Court as .
Further, the Supreme Court has also held in the case of CCB v. Maruti Udyog Ltd. (supra) that the wholesale price, which is charged is deemed to be the value for the purpose of levying of excise duty and the element of excise duty, sales-tax or other taxes which is included in the whole price, has to be excluded to arrive at the assessable value.
Supreme Court has, further, held that the benefit of Section 4(4)(d)(ii) of the Central Excise Act has to be extended to the assessee. Thus, following these decisions, we do not find any merit in the appeal filed by the Revenue which is rejected.