Custom, Excise & Service Tax Tribunal
M/S. India Meters Ltd vs The Commissioner Of Central Excise on 3 January, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Appeal No: E/770/2005 (Arising out of Order-in-Appeal No:99/2005-CE dated 21.04.2005 passed by the Commissioner of Central Excise (Appeals), Bangalore) 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? Yes 3. Whether their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? M/s. India Meters Ltd. Appellant Vs. The Commissioner of Central Excise Bangalore Respondent
Appearance
- None for the appellant (Written Submission) Smt. Sudha Koka, Authorised Representative (SDR), for the Revenue CORAM DR. S.L. PEERAN, HONBLE MEMBER (JUDICIAL) SHRI T. K. JAYARAMAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 03.01.2008 Date of decision: 03.01.2008 FINAL ORDER No._______________________2008 Per Dr. S. L. Peeran This appeal arises from Order-in-Appeal No. 99/2005 dated 21.04.2005 by which the Commissioner (Appeals) has confirmed the Order-in-Original No. 02/2005 dated 31.01.2005 passed by ACCE, Bangalore-II, rejecting the claim for abatement of equivalised freight in the light of Rule 5 of the Valuation Rules. The period covered is 01.07.2000 to 31.12.2002. The Commissioner has not applied the citations placed before him and has taken a view that they are not eligible for re-quantification of duty portion and that the demands are also not bared by time.
2. The appellants Consultant has sent a written submission along with a copy of this Benchs judgment rendered in the case of Transformers & Electricals Kerala Ltd. Vs. CCE&C, Cochin 2007 (213) ELT 398(Tri.-Bang.), which has followed the Apex Court judgment rendered in the case of Baroda Electric Meters Ltd. Vs. Collector 1997 (94) ELT 13(SC) and has allowed the appeal.
3. Heard learned SDR who opposed the prayer and the submitted that the Commissioner has correctly given the order.
4. We have carefully considered the submissions and perused the cited judgment. We find that the cited judgment clearly applies to the facts of this case. The judgment rendered in TELK in paras 1 to 7 is reproduced herein below:-
These appeals have been filed in respect of the following Orders-in-Appeal passed by the Commissioner of Customs & Central Excise (Appeals), Cochin Appeal No. Against the OIA No. & date E/684/2006 120 to 144/2006-CE dated 28.02.2006 E/484/2006 161/2006-CE dated 31.03.2006 E/504/2006 278/2006-CE dated 20.04.2006
2. In all these cases, the lower authorities have proceeded against these appellants for demand of duty on the freight and insurance charges collected in excess of the actual from their customers. The appellant approached the Commissioner (Appeals) who passed the impugned orders rejecting their appeals.
3. The appellants strongly challenge the impugned orders.
4. S/Shri Joseph Kodianthara, the learned Advocate and V. Gangadharan, Assistant Officer(Taxes) appeared on behalf of the appellants and Shri K. Sambi Reddy, the learned JDR, for the Revenue.
5. The learned Advocate submitted that the includibility of freight and insurance charges in the assessable value is well settled. It was pointed out that there is a plethora of case-laws which hold that when ex-factory price is available, the same should be taken for assessment and freight and insurance are not includible. They brought to our notice the following decisions:-
(1) West Coast Paper Mills Ltd. Vs. CCE, Bangalore 2004 (172) ELT 493(Tri.-Bang.) (2) BPL Telecom Pvt. Ltd. Vs. CCE, Cochin 2003 (153) ELT 193(Tri.-Bang.) (3) Jindal Vijayanagar Steel Ltd. Vs. CCE, Belgaum 2004 (172) ELT 331(Tri.-Bang.) (4) Bajaj Auto Ltd. Vs. CCE, Aurangabad 2003 (153) ELT 557(Tri.-Mumbai) (5) JBM Industries Ltd. Vs. CCE, New Delhi 2002 (143) ELT 379(Delhi) (6) CCE, Nagpur Vs. Sigma Transformers & Electricals 2004 (170) ELT 337(Mumbai) (7) CCE, Bhopal Vs. Laxmi Engineering 2005 (179) ELT (Delhi) (8) Welspun Gujarat state Rohran Ltd. Vs. CCE, Vadodara-II 2006 (194) ELT 430(Mumbai) (9) Lav Kush Textiles Vs. CCE, Jaipur-II 2006 (194) ELT 288(Delhi) (10) Indica Chemicals (P) Ltd. Vs. CCE, Meerut-I 2006 (195) ELT 279(Delhi) It was urged that the above decisions were on the basis of the Apex Courts decision in Baroda Electric Meters Ltd. vs. Commissioner 1997 (94) ELT 13(SC) and Indian Oxygen Ltd. Vs. Collector 1988 (36) ELT 723(SC). It was submitted that the appellants who manufacture transformers have undertaken to deliver them to their customers in order to keep their good relations. The expenditure incurred is separately collected from the customers. Revenue is insisting that when the place of delivery is the customers premises, the freight and insurance have to be included. It was urged that mere fact of customers insisting on delivery upto their doors would not make the sale to have been made at customers place. Once the goods have been handed over to the transporter through the driver, including the consignment and the invoice, then the sale is deemed to have been effected at the factory gate. Once ex-factory price is ascertained, the same shall be the basis for assessment to Central Excise duty. It was pointed out that based on the above dictum, the Tribunal has already rejected the Departments appeal against OIA No. 196/2004 rendered by the Commissioner (Appeals), Cochin.
6. The learned JDR fairly conceded that the issue is covered by a large number of decisions of the Apex Court.
7. We have gone through the records of the case carefully. The appellants manufacture Transformers. As per their contract with customers, delivery has to be made at their premises. But, ex-factory price is available. The transportation and insurance are separately collected. Excise duty is on the manufacture. The expenses incurred on account of transportation and insurance beyond the factory gate are not includible in the assessable value. Even the profit made in these activities is not includible in view of the decision of the Apex Court in Baroda Electric Meters case (cited supra). In these circumstances, we do not find any merit in the impugned Orders-in-Appeal. Hence, we allow the appeals with consequential relief, if any.. As can be seen, the above ratio clearly applies to the facts of this case. Respectfully following the ratio, the impugned order is set aside and appeal allowed with consequential relief, if any. (Pronounced and dictated in open Court) (T.K. JAYARAMAN) Member (T) (S.L.PEERAN) Member (J) /pr/ ??
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