Custom, Excise & Service Tax Tribunal
M/S.Prem Cables Pvt. Ltd vs Cce, Jaipur-Ii on 3 February, 2016
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/Decision:3.2.2016
Excise Appeals Nos.E/1756, 2171-2174/2007-EX(DB)
(Arising out of Order-in-Appeal No.182-186(HKS)CE/JPR-II/2007 dated 20.03.2007 passed by the Commissioner (Appeals-II), Customs & Central Excise, Jaipur).
M/s.Prem Cables Pvt. Ltd. .Appellants
Vs.
CCE, Jaipur-II Respondent
Appearance:
Rep. by Ms. Surabhi Sinha, Advocate for the appellant.
Rep. by Shri R.K Mishra, DR for the respondent.
For approval and signature:
Honble Shri S. K. Mohanty, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
Coram: Honble Shri S.K. Mohanty, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order Nos.50173-50177/2016 dated:03.02.2016 Per S.K. Mohanty:
These appeals are directed against the impugned order dated 22.03.2007 passed by the Commissioner (Appeals-II), Customs & Central Excise, Jaipur upholding the demand of central excise of Rs.15,49,658/- and equal amount of penalty confirmed in the adjudication order.
2. The brief facts of the case are that the appellant is engaged in the manufacture of AAC/ACSR conductors falling under Chapter 76 of the Central Excise Tariff Act, 1985. The goods were supplied by the appellant to various Electricity Board through transporter, M/s. Miracle Carrier & Trading Co., who is a related person of the appellants as the Directors of the appellants along with their wives were partners of the said transport firm. Central Excise Department initiated proceedings against the appellant on the ground that the appellants have proprietary interest in the transport firm. Since the prices are FOR destination basis, the ownership of the goods remain with the appellant till the same are delivered to the buyers.
3. Ms. Surabhi Sinha, ld. Counsel appearing for the appellants submits that the issue arising out of the present dispute is squarely covered by the decision of this Tribunal in the case of the appellant itself vide Order dated 18.01.2012 passed in Excise Appeal No.E/600 , 601, 603 of 2005 and Excise Appeal Nos.396 & 947 of 2006.
4. On the other hand, Shri R.K. Mishra, ld. AR appearing for the respondent reiterated the findings recorded in the impugned order.
5. We have heard ld. Counsels for both the sides and perused the records.
6. We find that the goods were supplied by the appellant against the Purchase Orders issued by the Electricity Board. The Purchase Orders clearly show the ex factory price, sales tax, freight and insurance charges separately. The appellant have entered into an agreement with the Transport Company providing for payment of compensation on account of loss and damage to the goods direct to the consignee. We find that the issue raised by the Department for confirmation of the duty demand is covered by the decision of this Tribunal vide Order dated 18.01.2012 relied on by the appellant. The relevant portion of the said order is extracted herein below:-
4. We have considered arguments on both the sides and the decisions given by the Apex Court in the matter. In the case of Escorts JCB Ltd. (supra) it has been held by Honble Apex Court that the place of removal in such cases is the factory gate and not the place at which goods are delivered. It has also been categorically ruled by the Apex Court that the cost of transportation from the factory gate to the premises of the buyers will not form part of the assessable value of the excisable goods. The only issue which may have to be looked into is whether the price of the goods is being collected in the guise of cost of transportation. On going through the case records, we find that no such case has been made out therefore the argument that the transporting company is a related person and consideration realised by the transporting company for transportation should form part of the assessable value and has no legal support. Section 4 of the Central Excise Act refers to related person only in the context of a sale to a related person. The Revenue has not been able to prove that the partnership firm of M/s Miracle Trading Co. is a proxy with no separate entity. Neither is any case made out that part of the price of the goods is being realised by the transporting company for the benefit of the Appellant company. Therefore in the facts of the case we do not see any merit in the orders of the lower authorities and we are in agreement with the argument of the Appellants that the proceeds realised by M/s Miracle Carrier and Trading Co. towards transportation of the goods will not form part of the assessable value of the goods cleared by Appellants. Therefore the Appeals are allowed by setting aside the impugned order with consequential benefit.
7. In view of the above, we do not find any merits in the impugned orders and thus, the same are set aside and the appeals are allowed in favour of the appellants.
[Order dictated and pronounced in open court on 3.2.2016] ( S.K. Mohanty ) Member (Judicial) ( B. Ravichandran ) Member (Technical) Ckp.
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