Holding

A voluntary charitable donation (Dharmada) collected alongside the sale price is not consideration for the goods and therefore cannot be included in the transaction value or assessable value for excise duty.

Summary

M/s D.J. Malpani, a manufacturer of chewing tobacco, collected a voluntary charitable donation called Dharmada from customers along with the sale price of its goods. The tax authorities treated the Dharmada amount as part of the transaction value and demanded excise duty, penalty and interest. The appellant argued that Dharmada is a donation made for charity, held in trust and not consideration for the sale, and therefore should not be included in assessable value. The Supreme Court examined the definition of transaction value under Section 4 of the Central Excise Act and the nature of Dharmada, relying on earlier decisions that charitable donations are not trading receipts. It held that Dharmada, being an optional payment for charity, does not form part of the price or transaction value of the goods. Consequently, the Court set aside the CESTAT order and allowed the appeal, ruling that Dharmada cannot be included in the assessable value for excise duty.

Issues considered

When does a charitable donation (Dharmada) collected along with the sale price constitute part of the transaction value for excise duty purposes?
Whether the amount received as Dharmada should be treated as assessable value under Section 4 of the Central Excise Act, 1944.
Whether precedents such as Collector v. Panchmukhi Engineering Works and Tata Iron & Steel Co. Ltd. v. Collector of Central Excise are applicable to Dharmada.

Legislation cited

Central Excise Act, 1944s. 4, s. 4(3)(d), s. 45
Central Excise Valuation (Determination of Price and Excisable Goods) Rules, 2000s. Rule 6
Sale of Goods Act, 1930s. 2(h), s. 44

Subjects

Dharmadatransaction valueassessable valueexcise dutycharitable donationsale of goodstax valuationCentral Excise Actcharity trust

Judgment

[2019] 6 S.C.R. 925 925

M/S D.J. MALPANI A
v.
COMMISSIONER OF CENTRAL EXCISE, NASHIK
(Civil Appeal No. 5282 of 2005)
APRIL 09, 2019 B
[S. A. BOBDE, DEEPAK GUPTA AND VINEET SARAN, JJ.]

Central Excise Act, 1944: s.4 – Assessable value – Dharmada,
a charitable donation – Inclusion of, in the assessable value – Held:
C
When an amount is paid as Dharmada along with the sale price of
goods, such payment is not made in consideration of the transfer of
goods – Such payment is meant for charity and is received and held
in trust by the seller – If such amounts are meant to be credited to
charity and do not form part of the income of the assessee, they
cannot be included in the transaction value or assessable value of D
the goods – In the instant case, the Dharmada collected by the
appellant was an optional payment made by the buyer – Therefore,
it cannot be regarded as part of the transaction value for the sale
of goods – Sale of Goods Act, 1930 – Central Excise Valuation
(Determination of Price and Excisable Goods), Rules 2000 – r.6.
E
Allowing the appeal, the Court
HELD: 1.1 There is no dispute that though paid along with
the sale price, the payment for Dharmada was made voluntarily
by the purchasers and that upon receipt was made over to charity.
There were certificates by the chartered accountant that showed F
that the Dharmada collection was credited to a separate account
and donated to a trust during the period of the show cause notices.
[Para 9][930-E]
1.2 Sale and purchase have been defined by Section 2 (h)
to mean any transfer of the possession of goods for payment or G
other valuable consideration. A contract of sale under the Sale of
Goods Act, 1930 means a contract whereby the seller transfers
or agrees to transfer the property in goods to the buyer for a
price. The transaction in this case was the sale of chewing tobacco.
[Para 12][931-C]
H
925
926 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 2.1 Under the Act, excise duty is chargeable with reference
to their value on removal of the goods. In case of sale of goods
where price is the sole consideration for the sale, duty is charged
on the transaction value. Additional consideration, if any, is also
included in the duty payable on such goods vide explanation.
“Transaction value” is defined in Section 4(3)(d) of the Act to
B
mean “the price actually paid or payable for the goods, when sold,
and includes in addition to the amount charged as price, any
amount that the buyer is liable to pay to, or on behalf of the
assessee by reason of or in connection with the sale……., but
does not include the amount of duty of excise, sales tax and other
C taxes, if any, actually paid or actually payable on such goods”.
[Para 13][931-D; 932-A-B]
2.2 In case of a sale of goods, excise duty is chargeable
where price is the sole consideration of a sale on ‘Transaction
value’. `Transaction value’ means the price actually paid or
D payable for the goods and any additional amount the buyer is liable
to pay to the assessee or anyone on his behalf in connection with
the sale by Section 4(3)(d). Rule 6 of the Central Excise Valuation
(Determination of Price and Excisable Goods), Rules 2000
provides that in case of a sale, the value of such goods shall be
deemed to be the transaction value and the amount of money
E value of any considerations following directly or indirectly from
the buyer to the assessee. Thus, duty is chargeable on the “price
actually paid for the goods”, in other words, the price paid as
consideration for transfer of property in the goods. The test for
determining whether in a transaction of sale any amount has been
F paid as price so that it can be treated as transaction value is only
whether, the money was paid for the goods as consideration or
the money value on any additional consideration paid in connection
with the sale of goods. No amount not paid as consideration for
the goods can go to make transaction value. [Para 14][932-C-D;
933-A-B]
G
Garner’s Dictionary of Legal Usage, 3 rd Edition –
referred to.
2.3 The term valuable consideration refers to an act,
forbearance or promise having an economic value. In the instant
H case, it is clear that only the money paid for the promise of
M/S D.J. MALPANI v. COMMISSIONER OF 927
CENTRAL EXCISE, NASHIK

transferring goods was the valuable consideration contemplated A
by the Excise Act and the Rules. The transaction value was the
sale of goods and the consideration was the price or value paid
for the goods. The transaction value must be construed
accordingly. This fairly clears up the character of any other amount
paid at the time of the transaction of sale of goods. Thus, if an
B
amount is paid at the time of the sale transaction for a purpose
other than the price of the goods, it cannot form part of the
transaction value; also for the reason that such payment is not
for the transaction of sale i.e. for the transfer of possession of
goods. Any payment made along side such a transaction cannot
be treated as consideration for the goods. [Para 14][933-C-E] C
3. DHARMADA is well known in India to be a donation or
an offering made for the purpose of charity as distinct from a
commercial transaction. The facts in the instant case showed that
the receipts on account of Dharmada were voluntary, earmarked
for charity and in fact credited as such. Though the payment as D
Dharmada has been found to be voluntary, it would make no
difference to the true character and nature of the receipts even if
there were found to be paid compulsorily because the purchaser,
purchased the goods out of their own volition. The purchase of
the goods is the occasion and not consideration for the Dharmada
paid by the customer. [Paras 15, 18][933-F; 935-C-D] E

Commissioner of Income Tax (Central) Delhi, New Delhi
v. Bijli Cotton Mills (P) Ltd. Hathras, District Aligarh
(1979) 1 SCC 496 : [1979] 2 SCR 241 – relied on.
Tata Iron & Steel Co. Ltd. v. Collector of Central Excise, F
Jamshedpur 2002 (146) ELT 3 (SC) – held inapplicable
Collector v. Panchmukhi Engineering Works 2003 (158)
ELT 550 (SC) – not good law
Thakur Das Shyam Sunder v. Additional CIT 93 ITR
27; CIT, West Bengal, Calcutta v. Tollygunge Club Ltd., G
Calcutta (1977) 2 SCC 790 : [1977] 3 SCR 225 –
referred to
Professor Wilson’s Glossary and Molesworth’s
Dictionary; Salmond on Jurisprudence Twelfth
Edition p.15 – referred to. H
928 SUPREME COURT REPORTS [2019] 6 S.C.R.

A Case Law Reference
2003 (158) ELT 550 (SC) not good law Para 5
2002 (146) ELT 3 (SC) held inapplicable Para 6
[1979] 2 SCR 241 relied on Para 7
B 93 ITR 27 referred to Para 16
[1977] 3 SCR 225 referred to Para 17

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5282 of
C 2005
From the final Judgment and Order No.A/167/WZB/2005/C-1
dated 06.01.2005 of the Customs, Excise and Service Tax Appellate
Tribunal, West Regional Bench at Mumbai in Appeal No.E/2437/2003
K. Radhakrishnan, S.K. Bagaria, Sr. Advs., Alok Yadav, K.Ajit
D Singh, Praveen Kumar, Ms. Nisha Bagchi, Ms. Aruna Gupta, B. Krishna
Prasad, U.A. Rana, Himanshu Mehta (for M/s Gagrat and Co.), Advs.
for the appearing parties.
The Judgment of the Court was delivered by

E S.A. BOBDE, J. 1. The appellant-assessee manufacture goods
falling under Chapter 24 of the Schedule of The Central Excise Act,
1944 (hereinafter referred to as “the Act”). While selling goods, the
appellant-assessee charged the customers invoices for the price of goods
plus Dharmada, a charitable donation. According to the appellant, the
Dharmada was paid voluntarily by customers and was meant for charity.
F It was accordingly credited to charity.
2. However, the Superintendent, Central Excise, Nashik issued
show cause notices and raised a demand of duty in respect of Dharmada,
claiming it was part of the price for the sale of manufactured goods and
included it for computing assessable value.
G
3. Initially, the Adjudicating Authority held that the Dharmada
component was not part of the trading receipts and could not be included
in the assessable value and dropped the demand for excise duty and the
penalty.

H
M/S D.J. MALPANI v. COMMISSIONER OF 929
CENTRAL EXCISE, NASHIK [S.A. BOBDE, J.]

4. However, another show cause notice dated 3.8.2001 was issued A
by the Commissioner of Central Excise, Aurangabad under Section 4 of
the Act calling upon the appellant to show cause as to why penalty
under Section 173Q and interest under Section 11AA should not be levied.
After hearing the appellant, the Deputy Commissioner held vide order
dated 26.02.2002 that Dharmada cannot be considered as trading receipts
B
and was not part of the assessable value. Therefore, no duty was payable
on the component of Dharmada.
5. Thereafter, in an appeal filed by Revenue, the Commissioner
(Appeals), however, held that the Dharmada was liable to be included
as a part of the assessable value and therefore the goods were liable to
be assessed on the basis of their price plus Dharmada. C

The Central Excise and Service Tax Appellant Tribunal (for short
“CESTAT”), in an appeal filed by the appellant, by judgment dated
6.1.2005 partly allowed the appeal and held that the duty amount needs
to be recalculated. The CESTAT however rejected the appellant’s
contention that Dharmada was not part of the transaction value. The D
CESTAT purported to follow the judgment of this Court in Collector vs.
Panchmukhi Engineering Works1, whereby this Court held that Dharmada
charged by the assessee is liable to be included in the assessable value.
6. In the appeal filed by the appellant before a Division Bench of
this Court, it was contended that the decision in Panchmukhi (supra) E
followed an earlier decision of Tata Iron & Steel Co. Ltd. vs. Collector
of Central Excise, Jamshedpur2 which did not apply to the present case
at all. The Tata Iron & Steel case was a case where steel plants added
a surcharge to the ex-works price at the instance of a committee under
the Iron and Steel (Control) Order, 1956. This surcharge was added to F
generate money for a steel development fund to implement schemes
entrusted to the committee by the Central Government. The surcharge
went to the committee for use in its various schemes and for the
expenditure incurred towards discharge of the committee’s functions.
Thus, the question before this Court was if surcharge being a charge
that was compulsorily payable by the customers could be considered as G
a part of the price i.e. the assessable value.
This Court held that the surcharge was a part of the price fixed
by the committee under the statutory provisions. The appellant’s
1
2003 (158) ELT 550 (SC)
2
2002 (146) ELT 3 (SC)
H
930 SUPREME COURT REPORTS [2019] 6 S.C.R.

A contention was that the decision in Panchmukhi (supra) which merely
followed the decision in Tata Iron & Steel (supra) was no authority for
the proposition that Dharmada being a donation for charitable purposes
was liable to be included in the assessable value.
7. In addition, the appellant contended that this Court has clearly
B held in the case of The Commissioner of Income Tax (Central) Delhi,
New Delhi vs. Bijli Cotton Mills (P) Ltd. Hathras, District Aligarh3 that
amounts received for Dharmada and earmarked for charitable purposes
are amounts received by the assessee under an obligation to spend the
same for charitable purposes. Therefore, these receipts cannot be
regarded as income of the assessee.
C
8. On noticing the above contentions, a Division Bench of this
Court vide order dated 29.7.2015 has referred the following question to
this larger Bench: -
Whether the Dharmada collected by the appellant which is clearly
D an optional payment made by the buyer can be regarded as part of the
transaction value for the sale of goods.
9. An important fact that needs to be noted at the outset is that
there is no dispute before us that though paid along with the sale price,
the payment for Dharmada was made voluntarily by the purchasers and
E that upon receipt was made over to charity. There is no challenge that
it is in fact not voluntary. There are certificates on record by the chartered
accountant that shows the Dharmada collection was credited to a separate
account and donated to a trust during the period of the show cause
notices.

F 10. The only question that arises for decision is whether the amount
included as Dharmada by a manufacturer and credited for charitable
purposes is liable to be included in the assessable value of manufactured
goods; the seller having merely acted as conduit between the purchaser
and charity.
11. It is necessary to enquire into the nature of the transaction i.e.
G
what was sold, the price that was paid and the transaction value for the
purpose of arriving at the assessable value.

3
(1979) 1 SCC 496

H
M/S D.J. MALPANI v. COMMISSIONER OF 931
CENTRAL EXCISE, NASHIK [S.A. BOBDE, J.]

WHAT WAS SOLD A
12 The appellant manufactured and sold chewing tobacco to
their customers. A price was paid by the customers as ‘consideration’
for these goods i.e. transfer of property of the goods to the customers.
This is clear from the invoices.
THE ‘TRANSACTION VALUE’ FOR THE PURPOSE OF B
ARIVING AT ASSESSABLE VALUE
Sale and purchase have been defined vide Section 2 (h) to mean
any transfer of the possession of goods for payment or other valuable
consideration. A contract of sale under The Sale of Goods Act, 1930
means a contract whereby the seller transfers or agrees to transfer the C
property in goods to the buyer for a price vide Section 44. The transaction
in this case was the sale of chewing tobacco.
13. Under the Act, excise duty is chargeable with reference to
their value on removal of the goods. In case of sale of goods where
price is the sole consideration for the sale, duty is charged on the D
transaction value vide Section 45 . Additional consideration if any is also
4
Section 4 of The Sale of Goods Act, 1930
4. Sale and agreement to sell.— (1) A contract of sale of goods is a contract whereby
the seller transfers or agrees to transfer the property in goods to the buyer for a price.
There may be a contract of sale between one part-owner and another.
E
(2) A contract of sale may be absolute or conditional.

(3) Where under a contract of sale the property in the goods is transferred from the
seller to the buyer, the contract is called a sale, but where the transfer of the property
in the goods is to take place at a future time or subject to some condition thereafter to
be fulfilled, the contract is called an agreement to sell.
(4) An agreement to sell becomes a sale when the time elapses or the conditions are F
fulfilled subject to which the property in the goods is to be transferred.
5
Section 4 of The Central Excise Act, 1944
4. Valuation of excisable goods for purposes of charging of duty of excise. -
(1) Where under this Act, the duty of excise is chargeable on any excisable goods with
reference to their value, then, on each removal of the goods, such value shall -
G
(a) in a case where the goods are sold by the assessee, for delivery at the time and
place of the removal, the assessee and the buyer of the goods are not related and the
price is the sole consideration for the sale, be the transaction value;
(b) in any other case, including the case where the goods are not sold, be the value
determined in such manner as may be prescribed.

H
932 SUPREME COURT REPORTS [2019] 6 S.C.R.

A included in the duty payable on such goods vide explanation.
“Transaction value” is defined vide Section 4(3)(d) of the Act to
mean “the price actually paid or payable for the goods, when sold, and
includes in addition to the amount charged as price, any amount that the
buyer is liable to pay to, or on behalf of the assessee by reason of or in
B connection with the sale……., but does not include the amount of duty
of excise, sales tax and other taxes, if any, actually paid or actually
payable on such goods”.
14. In case of a sale of goods, excise duty is chargeable where
price is the sole consideration of a sale on ‘Transaction value’.
C ‘Transaction value’ means the price actually paid or payable for the
goods and any additional amount the buyer is liable to pay to the assessee
or anyone on his behalf in connection with the sale vide Section 4(3)(d)
supra. Rule 6 of the Central Excise Valuation (Determination of Price
and Excisable Goods), Rules 20006 provides that in case of a sale, the
value of such goods shall be deemed to be the transaction value and the
D amount of money value of any considerations following directly or

Explanation. - For the removal of doubts, it is hereby declared that the price-cum-
duty of the excisable goods sold by the assessee shall be the price actually paid to him
for the goods sold and the money value of the additional consideration, if any, flowing
directly or indirectly from the buyer to the assessee in connection with the sale of
E
such goods, and such price-cum-duty, excluding sales tax and other taxes, if any,
actually paid, shall be deemed to include the duty payable on such goods.
(2) ……….
(3) (a)……….
(b)……….
(c) ……….
F (d) “transaction value” means the price actually paid or payable for the
goods, when sold, and includes in addition to the amount charged as price, any amount
that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in
connection with the sale, whether payable at the time of the sale or at any other time,
including, but not limited to, any amount charged for, or to make provision for, advertising
or publicity, marketing and selling organization expenses, storage, outward handling,
servicing, warranty, commission or any other matter; but does not include the amount
G of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on
such goods.]
6
Rule 6 - Where the excisable goods are sold in the circumstances specified in clause
(a) of sub section (1) of section 4 of the Act except the circumstance where the price is
not the sole consideration for sale, the value of such goods shall be deemed to be the
aggregate of such transaction value and the amount of money value of any additional
consideration flowing directly or indirectly from the buyer to the assessee.
H
M/S D.J. MALPANI v. COMMISSIONER OF 933
CENTRAL EXCISE, NASHIK [S.A. BOBDE, J.]

indirectly from the buyer to the assessee. Thus, duty is chargeable on A
the “price actually paid for the goods”, in other words, the price paid as
consideration for transfer of property in the goods. The test for
determining whether in a transaction of sale any amount has been paid
as price so that it can be treated as transaction value is only whether, the
money was paid for the goods as consideration or the money value on
B
any additional consideration paid in connection with the sale of goods.
No amount not paid as consideration for the goods can go to make
transaction value.
‘Consideration’ means, vide Garner’s Dictionary of Legal Usage,
3rd Edition: ‘the act, forbearance or promise by which one party to the
contract keep the promise of another’. The term valuable consideration C
refers to an act, forbearance or promise having an economic value. In
this case, it is clear that only the money paid for the promise of transferring
goods was the valuable consideration contemplated by the Excise Act
and the Rules. The transaction value was the sale of goods and the
consideration was the price or value paid for the goods. The transaction D
value must be construed accordingly.
This fairly clears up the character of any other amount paid at the
time of the transaction of sale of goods. Thus, if an amount is paid at
the time of the sale transaction for a purpose other than the price of the
goods, it cannot form part of the transaction value; also for the reason E
that such payment is not for the transaction of sale i.e. for the transfer
of possession of goods. Any payment made along side such a transaction
cannot be treated as consideration for the goods.
DHARMADA
15. This takes us to the nature of the “Dharmada” when given F
along with the sale price of goods. Dharmada is well known in India to
be a donation or an offering made for the purpose of charity as distinct
from a commercial transaction. This Court considered the nature and
character of Dharmada in Bijli Cotton Mills (supra). That case arose
under the Income Tax Act. The assessee used to realise certain amounts G
on account of Dharmada from his customers on sales of yarn and bales
of cotton. The rate was one anna per bundle of ten pounds of yarn and
two annas per bale of cotton. The receipts of Dharmada were not
credited to the trading account but the assessee maintained a separate
account known as the Dharmada account. The authorities under the
H
934 SUPREME COURT REPORTS [2019] 6 S.C.R.

A Act held that the amounts held by the assessee could not be regarded as
having been held under trust for charitable purposes.
16. The High Court, however, held that the impugned amounts
paid as Dharmada were never the income of the assessee and assessee
was merely acting as a conduit for passing on the amounts to the objects
B of charity. These amounts were never treated as trading receipts or as
surcharge on the sale price which was evident from the fact that such
realisations were never credited to the trading account nor shown in the
profit and loss statement for any year.
This Court considered the question in great detail and after referring
C to Professor Wilson’s Glossary and Molesworth’s Dictionary observed
that Dharmada means “an alms or a gift in charity”. This Court observed
that though there might be some vagueness as a matter of law, in the
word Dharma, there was none in relation to Dharmada or Dharmadaya
and such a payment would not be invalid for vagueness or uncertainty.
This Court accepted the decision of the Allahabad High Court in Thakur
D Das Shyam Sunder vs. Additional CIT7 and observed that “it cannot be
disputed that among the trading or commercial community in various
parts of the country, a gift or payment for Dharmada is by custom
invariably regarded as a gift for charitable purposes”. This Court
observed that the answer to the question depended on the nature of the
E obligation created by the customer and approved the finding of the
Allahabad High Court to the effect that merely because under the law
relating to trust legal ownership over the trust fund and the power to
control and dispose of always vest in the trustees, the discretion vested
in the trustee to spend the amount over charities will not affect character
of the deposit.
F
17. This Court also relied on CIT, West Bengal, Calcutta vs.
Tollygunge Club Ltd., Calcutta8. In that case, the Court considered the
nature of a surcharge of eight annas over and above the admission fees
into the enclosure of the club at the time of the races. The proceeds of
this surcharge were to go to the Red Cross Fund and other local charities.
G This Court approved the decision of the Calcutta High Court and held
that the “surcharge was not part of the price for admission but made for
the specific purpose of being applied to local charities”. It observed “the
7
93 ITR 27
8
(1977) 2 SCC 790 : (1977) 107 ITR 776
H
M/S D.J. MALPANI v. COMMISSIONER OF 935
CENTRAL EXCISE, NASHIK [S.A. BOBDE, J.]

admission to the enclosure is the occasion and not the consideration for A
the surcharge taken from the race-goer. It rejected the contention that
the payment was involuntary, observing “that does not render the payment
of the surcharge involuntary, because it is out of his own volition that he
seeks admittance to the enclosure”.
Applying the above decisions to the case before it, this Court held B
in Bijli Cotton Mills (supra) that Dharmada amounts cannot be said to
have been paid involuntarily by the customers and in any case the
compulsory nature of the payments, if there be any, cannot impress the
receipts with the character of being trading receipts.
18. We find from the facts of the case before us that the receipts C
on account of Dharmada were voluntary, earmarked for charity and in
fact credited as such. Though the payment as Dharmada has been
found to be voluntary, it would make no difference to the true character
and nature of the receipts even if there were found to be paid compulsorily
because the purchaser, purchased the goods out of their own volition.
The purchase of the goods is the occasion and not consideration for the D
Dharmada paid by the customer as held in Bijli Cotton Mills (supra) vide
para 15: -
“15. …… It is true that without payment of “Dharmada” amount
the customer may not be able to purchase the goods from the
assessee but that would not make the payment of “Dharmada” E
amount involuntary inasmuch as it is out of his own volition that
he purchases yarn and cotton from the assessee. The “Dharmada”
amount is, therefore, clearly not a part of the price, but a payment
for the specific purpose of being spent on charitable purposes.
……...” F
19. In this case, the CESTAT decided against the assessee relaying
on Panchmukhi (supra). The case of Panchmukhi (supra) was apparently
decided not after a discussion on facts and law but because the counsel
for the revenue submitted that the matter is covered by the decision in
Tata Iron & Steel (supra) and the counsel for the assessee “was not in G
a position to dispute this legal position”. The judgment in Panchmukhi
(supra) has little precedential value. The point whether Dharmada
involved in Panchmukhi (supra) and the surcharge held as price in Tata

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936 SUPREME COURT REPORTS [2019] 6 S.C.R.

A Iron & Steel (supra) were identical and liable to be included in the
transaction value passed sub-silentio. Salmond on Jurisprudence Twelfth
Edition p.15h states that a decision held is not binding since it was decided
“without argument, without reference to the crucial words of the rule,
and without any citation of authority”, therefore, would not be followed.
The author also states that precedents sub-silentio and without arguments
B
are of no moment. This is enough reason for not treating the decision in
Panchmukhi (supra) as a binding precedent.
It is, therefore, necessary to take a look at Tata Iron & Steel
(supra). That was a case where the customer paid a surcharge on the
price of steel. This surcharge was added to generate money for a steel
C development fund to implement schemes entrusted to the committee by
the Central Government. The surcharge went to the committee for use
in its various schemes and for the expenditure incurred towards discharge
of the committee’s function.
20. Nonetheless, the surcharge was part of the consideration paid
D by the customer for the price of steel. The notifications under which the
surcharge was added clearly stated as follows: -
(i) “The Committee may add an element to the ex-works prices
determined ……..”

E and
(ii) “The Committee may require members steel plants to add the
elements listed below to their ex-works………”
The purpose of this addition was to constitute a steel development
fund for modernisation, research & development, diversification etc. for
F improving the quantum of technology and efficiency of production of
iron and steel and their quality.
21. The other objects of the fund, were to implement specific
schemes entrusted to the Committee by the Central Government and
towards the Engineering Goods Export Assistance Fund. This Court
G considered the question whether the addition would fall under the meaning
of the term “other taxes” within the meaning of Section 4 (ii) which
excluded the amount of other taxes payable on such goods from value.
It was contended on behalf of the assessee that they were compelled by
law to collect this charge over and above the price without the right to
H
M/S D.J. MALPANI v. COMMISSIONER OF 937
CENTRAL EXCISE, NASHIK [S.A. BOBDE, J.]

appropriate it for themselves and with a duty of making it over to a third A
party and therefore the charges could not be regarded as part of the
consideration of the sale price of goods.
This Court held that the charges were clearly added as an element
of price and observed, “thus what was being added was to the price”.
Another aspect to be kept in mind is that the ultimate beneficiaries of B
these amounts are the steel plants themselves.
22. We find that the decision in Tata Iron & Steel (supra) is
completely inapposite to the circumstances of the case before us. The
reliance placed on Tata Iron & Steel (supra) and Panchmukhi (supra)
which was a case of Dharmada, is misplaced. Panchmukhi (supra) C
cannot be said to be good law.
23. In the circumstances we hold that when an amount is paid as
Dharmada along with the sale price of goods, such payment is not made
in consideration of the transfer of goods. Such payment is meant for
charity and is received and held in trust by the seller. If such amounts D
are meant to be credited to charity and do not form part of the income of
the assessee they cannot be included in the transaction value or
assessable value of the goods.
24. Thus, the answer to the question referred by the Division
Bench is as follows: - E
“The Dharmada collected by the appellant which is clearly an
optional payment made by the buyer cannot be regarded as part
of the transaction value for the sale of goods.”
25. The judgment of the CESTAT is accordingly set aside.
F
The appeal is allowed.

Devika Gujral Appeal allowed.

G

H