Custom, Excise & Service Tax Tribunal
Uflex Ltd vs Cce & Customs, Jammu on 22 October, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
BENCH-DB
PRINCIPAL BENCH
Excise Stay Application No.E/S/50148/2014 in
Excise Appeal No.E/50121/2014 [Ex. DB]
Excise Stay Application No.E/S/50149/2014 in
Excise Appeal No.E/50122/2014 [Ex. DB]
[Arising out of Common Order-in-Appeal No.JNK-EXCUS-000-APP-238 & 238 13- 14 dated 18.09.2013 passed by the Commissioner (Appeals), Central Excuse, Chandigarh-II].
For approval and signature:
HONBLE MR.JUSTICE G.RAGHURAM, PRESIDENT
HONBLE MR. R.K.SINGH, 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?
__________________________________________________
Uflex Ltd. Appellant
Vs.
CCE & Customs, Jammu Respondent
Present for the Appellant : Shri Arvind Arora, Advocate
Present for the Respondent: Shri M.S. Negi, DR
Coram: HONBLE MR.JUSTICE G.RAGHURAM, PRESIDENT
HONBLE MR. R.K.SINGH, MEMBER (TECHNICAL)
Date of Hearing/Decision: 22.10.2014
FINAL ORDER NO. 54225-54226/2014
PER: R.K.SINGH
Stay applications alongwith appeals have been filed against Order-in- Appeal No.JnK-EXCUS-000/APP-238-239-13-14 dated 18.09.2013 which upheld the Order-in-Original No.35/2012-13/ADC/RJ/CCE/J&K 2012 DATED 31.12.2012 (which had disallowed self credit (refund) of Rs.44,84,047/- and ordered recovery thereof alongwith interest and equal mandatory penalty) and Order-in-Original No.36/2012-13 AD/RJ/CCE/J&K 2012 dated 11.01.2013 (which had disallowed the self-credit (refund) of Rs.6,87,409/- and ordered recovery thereof alongwith interest and penalty of Rs.50,000/-).
2. The issue, in brief, is as under:-
The appellants are based in J & K and availing of the benefit of Notification No.56/2002-CE dated 4.11.2002 in respect of their finished products printed/unprinted/ laminated plastic films etc. They had been claiming refund (self credit) of the Central Excise duty paid in cash as per the said Notification No.56/2002-CE. The impugned demand was confirmed on the ground that they had paid extra duty in cash by including the freight charges incurred for transport of their goods to the buyers premises while the same were not includible in the assessment value. The appellants have contended that they had sold their goods on FOR destination basis and were respondible for the goods upto their destination point and the ownership of the goods also remained with them upto that point. They had also taken insurance for the safe transit upto the place of delivery/destination. Thus, the appellants contended, the freight charges were includible in the assessable value and therefore, they had correctly paid the duty of which they were eligible for refund in terms of the Notification aforementioned.
3. Heard both sides. We find that the short point involved in this case is whether the transport charges incurred by the appellants in transporting and delivering the goods upto the buyers premises are includible in the assessable value. Therefore, we, with the consent of both sides take up the appeals, dispensing with the requirement of pre-deposit.
4. We have perused the representative sales order and invoices. We find that the sale is on FOR destination basis and the destination is the buyers premises. The cost of transportation is included in the assessable value and the transit insurance has also been taken by the appellants in their name for safe transport of the goods. Thus, it is evident that the ownership of the goods remained with the appellants upto the place of delivery at the buyers premises. In other words, the point of sale is the buyers premises. In these circumstances the place of removal, as per definition in section 4 of the Central Excise Act, 1944 becomes the buyers premises, as that is the place or premises from where the excisable goods were sold after the clearance from the factory from where such goods were removed. That being the case, the freight charges are clearly includible in the assessable value. Therefore, duty paid by them on the impugned goods on value inclusive of the freight charges has been correctly paid and consequently the impugned refund (self-credit) thereof under notification No. 56/2002-CE has also been correctly taken. We find that the High Court of Punjab & Haryana in the case of Ambuja Cement vs. Union of India - 2009 (236) ELT 431 (P & H) after a detailed discussion has came to a clear finding that in the circumstances like the ones obtaining in the present case the buyers premises is the place of removal. As per Rule 5 (Explanation -2) of the Central Excise Valuation (Determination of Price of Excisable goods) Rules, 2000, it was clarified for removal of doubts that the cost of transportation from the factory to the place of removal where the factory is not the place of removal shall not be excluded for the purpose of determining the value of excisable goods. We are not consciously referring to the CBEC Circular No.97/6/2007-ST dated 23.08.2007 which also clearly supports the view that in these circumstances the place of removal is the buyers premises. The decision of the Chattisgarh High Court in the case of Ultratech Cement Ltd. Vs. CCE Raipur : 2014 (307) ELT 3 (Chhattisgarh) is also in harmony with the view taken by Punjab & Haryana High Court (supra) in this regard. In the wake of the foregoing analysis and judicial precedents, the judgement of CESTAT in case of Aditya Birla Insulators Ltd. Vs. Commissioner, Central Excise, Kolkata-IV:2008 (226) ELT 377 (Tri.) holding a contrary view clearly stands over-ruled. Thus, the appellants rightly included the cost of transportation in the assessable value. This issue having thus been settled in the appellants favour, the duty was correctly paid and hence the impugned refund correctly taken.
5. We also note that the extended period has also been invoked in respect of the Order-in-Original dated 31.12.2012. In this regard, we find that it has not been brought out as to what which was required to be brought to the notice of the Department as per any provision law was not brought to the departments notice. The appellants had been filing their ER-1 returns showing all the details required to be shown therein. It has been held by Supreme Court in the case of Commr. Vs. Champhar Drugs Liniments: 2002-TIOL-266-SC-CX that something positive other than mere inaction or failure on the assessees part or conscious withholding of information when assessee knew otherwise is required for invoking extended period. In case of Gopal Zarda Udyog vs. CCE, Delhi, Supreme Court observed that mere failure or negligence on the part of the manufacturer does not attract the extended period. However, as the assessee succeeds on merits, we avoid dwelling on the issue of time bar any further.
6. In the light of forgoing, the appeals are allowed.
(JUSTICE G.RAGHURAM) PRESIDENT (R.K. SINGH) MEMBER (TECHNICAL) anita ??
??
??
??
0 3E/S/50148-50149/2014 in E/50121-50122/2014 [Ex. DB]