Customs, Excise and Gold Tribunal - Mumbai
Panchmahal Steel Ltd. vs Commissioner Of Central Excise on 2 December, 2003
ORDER Shri Krishna Kumar, Member (J)
1. Shri. W.Christian, Ld. Advocate appearing on behalf of the appellants interalia contended that the learned Commissioner (Appeals) has passed the impugned order in violation of principle of natural justice as he has failed to give his findings on several vital submissions made by the appellants in their written as well as oral submissions during the personal hearing; that the Ld. Commissioner (Appeals) has also erred in giving his findings that the judgment of Apex Court in the case of MRF reported in 1995 (58) ECR 385 (SC) has no application to the Appellant's case; that the Ld. Commissioner (Appeals) has misinterpreted and misconstrued the judgment of the Apex Court in the case of Indian Oxygen Ltd. reported in 1998 (36) ELT 723 (SC). The Ld. Counsel finally contended that the deduction claimed was legally permissible under Section 4(4)(d)(ii) of the Central Excise Act, 1944 and such deduction was in consonance with the ratio of the Apex Court in MRF case.
2. Shri. J.M.George, Ld. JDR appearing on behalf of the Revenue interalia contended that since the factory gate whole sale price was not under challenge and the same continues to exist, the issue involved in the present case is squarely covered by the decision of the Apex Court in the case of Indian Oxygen reported in 1998 (36) ELT 723 (SC). The Apex Court in this case has held as under:-
"Valuation - Goods partly sold from depots and partly from factory -ex-factory price ascertainable-ex-factory price to be the basis of value under Section 4 of the Central Excises & Salt Act even for goods sold from depots - Quotation of transportation charges etc. irrelevant. - The appellants are selling the goods from the factory at Vishakhapatnam and also from their depot/service centres at various places. The goods are also sold to Govt. at D.G.S.&.D. rate contract. Since the ex-factory price is ascertainable, such ex-factory price shall be the basis for determination of value under Section 4 of the Central Excises & Salt Act 1944 and the question of transportation charges become irrelevant (paras 5 and 9).
Valuation - Sale of goods from depot-ex-factory price ascertainable. Assessee not furnishing details of actual transportation charges - Transportation charges not to be added. Excise not a tax on profits made on transportation charges - Section 4 of the Central Excises & Salt Act 1944 - The value under Section 4 is to be determined on the basis of wholesale price at which goods are sold at the factory gate (i.e. place of removal), thus, the cost of the transportation from the factory gate to the place of delivery and transport expenses cannot be excluded to wholesale price at factory gate because the duty of excise is a tax on manufacture and not on the profits made on transportation charges. (para 5).
Valuation - Loading charges when excludible -Section 4 of the Central Excises & Salt Act, 1944 - Insofar as the loading charges incurred for loading the goods within the factory are concerned, they are to be included in the assessable value irrespective of who has paid for the same but the loading expenses incurred outside the factory gate are excludible. (para 5) Valuation - Sale from depots/service centres-ex-factory price are not ascertainable. Ex-depot sale price to be the basis for valuation. Admissible deduction to be claimed by assessee from price list on the basis of the actual evidence - Section 4 of the Central Excises & Salt Act 1944. If the ex-factory price is ascertainable, the issue of deductions from the ex-depot prices does not arise. But the ex-factory prices are not ascertainable and goods are to be assessed ex-depots, then if is for the manufacturer to claim on the basis of actual evidence of the admissible deductions from the price lists, (para 6)."
3. He contended that since the factory gate prices are available, the same shall be the price for the assessable value as per the provisions of Section 4 as mentioned above. He, therefore, contended that the Ld. Commissioner (Appeals) has passed the correct order.
4. After hearing rival submissions, perusal of the case laws and records, we find that in the present case the appellants were selling their products partly from their factory and partly from their depot. Therefore, the factory gate price is available. Keeping in view the Apex Court's decision in the case of Indian Oxygen being on similar facts, the factory gate price shall form the basis for the assessable value. As such we do not find any legal infirmity in the impugned order. We, therefore, dismiss the appeals filed by the appellants.
(Pronounced in Open Court on 2.12.2003)