Custom, Excise & Service Tax Tribunal
M/S. Fenner Conveyor Belting Pvt. Ltd vs Commissioner Of Central Excise, ... on 3 October, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/132/2009
(Arising out of Order-in-Appeal No. 102/2008 dated 30.11.2008 passed by the Commissioner of Central Excise (Appeals), Madurai)
M/s. Fenner Conveyor Belting Pvt. Ltd. Appellant
Vs.
Commissioner of Central Excise, Madurai Respondent
Appearance Shri M. Kannan, Advocate for the Appellant Shri S. Govindarajan, AC (AR) for the Respondent CORAM Honble Ms. Sulekha Beevi C.S., Member (Judicial) Honble Shri Madhu Mohan Damodhar, Member (Technical) Date of Hearing / Decision: 03.10.2017 Final Order No. 42252 / 2017 Per Bench Brief facts of the case are that the appellants are engaged in the manufacture of Fenoplast PVC colliery conveyor belting and were issued show cause notice alleging non-inclusion of Pre-Delivery Inspection charges in the assessable value. After adjudication, the original authority dropped the proceedings. On appeal by the department, Commissioner (Appeals) upheld the demand of Rs.1,14,831/ and Rs.20,524/- for the period June 2004 to March 2005 and April 2005 to December 2005 respectively raised in the. Hence this appeal.
2. On behalf of the appellant, ld. counsel Shri M. Kannan submitted the inspection was conducted by third party only as per the contract entered into between the parties. Such pre-delivery inspection was conducted at the behest of the buyer and therefore they are not includible in the assessable value. He relied on the following decisions:-
(a) Commissioner of Central Excise Vs. Bhaskar Ispat Pvt. Ltd. -2004 (167) ELT 189 (Tri. LB)
(b) Commissioner of Central Excise Vs. Johnson Pumps (I) Ltd. 2010 (251) ELT 560
(c) Commissioner of Central Excise Vs. Lubi Submersibles Ltd. 2015 (317) ELT 299
(d) Commissioner of Central Excise Vs. Sulzer Pumps India Ltd. 2015 (326) ELT 619
3. It was also submitted by him that for the subsequent periods, the Commissioner (appeals) has dropped the demands following the above decisions.
4. On behalf of Revenue, ld. AR Shri S. Govindarajan reiterated the findings in the impugned order.
5. Heard both sides and perused the records.
6. We find that the issue whether pre-delivery inspection charges is to be included in the assessable value is settled in favour of the appellant in the above cases. It is also submitted that for the subsequent periods, the demand has been dropped by the Commissioner (Appeals) wherein the issue has been discussed in para 15 of the Order-in-Appeal No. 75 to 84/2015 dated 22.12.2015, which is as under:-
15. In view of the foregoing discussions, since the PDI is done at the instance of the buyer/specific customer and borne by the buyer/customer and by respectfully following the ruling of Honble Supreme Court of India and CESETAT in the cases cited above, the appellant succeeds in all their appeals on merits and the impugned orders passed by the adjudicating authority which are appealed against are liable to be set aside. Consequently, demand of interest and imposition of penalty under relevant provisions ordered by the adjudicating authority are also liable to be set aside.
7. It is also asserted by the ld.counsel that the department has not filed any appeal against such order.
8. Taking the facts submitted into consideration as well as the issue having been settled by the above decisions, we hold that the demand is unsustainable. The impugned order is set aside and the appeal is allowed with consequential relief, if any.
(Dictated and pronounced in open court)
(Madhu Mohan Damodhar) (Sulekha Beevi C.S.)
Member (Technical) Member (Judicial)
Rex
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