Custom, Excise & Service Tax Tribunal
M/S. Areva T & D India Ltd vs Cce, Ltu, Chennai on 29 July, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/S/202/2009 & E/291/2009
(Arising out of Order in Appeal No. 1/2009 (D) dated 16.02.2009, passed by the Commissioner of Central Excise, (Appeals) LTU, Chennai).
For approval and signature
Honble Ms. JYOTI BALASUNDARAM, Vice President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
_________________________________________________________
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 the Honble Member wishes to see the fair :
copy of the Order.
4. Whether order is to be circulated to the :
Departmental Authorities? _________________________________________________________
M/s. Areva T & D India Ltd., : Appellant
Vs.
CCE, LTU, Chennai : Respondent
Appearance Shri Joseph Prabakar, Adv., for the appellant Shri V.V. Hariharan, JCDR, for the respondent CORAM Ms. JYOTI BALASUNDARAM, Vice President Dr. CHITTARANJAN SATAPATHY, Technical Member Date of hearing : 29.07.09 Date of decision : 29.07.09 Final ORDER No._____________ Per: Jyoti Balasundaram, For reasons recorded below, we waive predeposit of duty of Rs. 12,322/- confirmed by inclusion of freight and insurance charges in the assessable value of the goods cleared by the appellants herein and proceed to hear the appeal itself at this stage as the issue is settled in favour of the assessees by the case of CCE, Hyderabad Vs. Koya & Co. Construction Pvt. Ltd. 2009 (236) ELT 316 (Tri.-Bang.).
2. The case of the department against the assessees is that during the period of dispute namely Feb06 to June06, Rule 6(3) of Cenvat Credit Rules, 2004, would require that a manufacturer of both dutiable and exempted goods not maintaining separate accounts shall pay an amount equal to 10% of value of the exempted final products, rejecting the contention of the assessees based upon the Tribunals order cited supra, on the ground that the rule was amended only on 01.04.08, providing the manufacturer to pay an amount equal to ten percent of the total price, excluding sales tax and other taxes, if any, paid on such goods, of the exempted final products charged by the manufacturer for the sale of such goods at the time of their clearance from the factory. However, we find that the decision in CCE, Hyderabad Vs. Koya & Co. Construction Pvt. Ltd (supra) was rendered prior to the amendment of Rule 6(3) of CCR,2004, wherein the Tribunal uphold the Commissioners order holding that i) cost of transportation, ii)laying, iii) jointing, iv) testing and v) commissioning could not be considered to be elements of the price of goods at the factory gate and rejecting the departments contention that the assessee should be subjected to 8% amount on price attributable to the above elements. Following the ratio of the decision cited supra, we set aside the impugned order, by holding that the elements of freight and insurance charges do not form part of the assessable value for the purpose of payment of 8% amount in terms of Rule 6(3), and allow the appeal.
(Order dictated and pronounced in the open Court)
(Dr. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE PRESIDENT
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