Custom, Excise & Service Tax Tribunal
Cce Raipur vs Pankaj Oxygen Ltd on 17 June, 2008
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI, COURT NO.1
EXCISE APPEAL NO. 3503 OF 2008
Date of Hearing: 17.6.2008
Date of Decision:17.6.2008
[Arising out of l Order-in-Appeal No.91/RPR-I/2005 dated 12.8.2005 passed by the Commissioner of Central Excise (Appeals-I), Raipur ]
Honble Mr. Justice S.N. Jha, President
Honble Mr. M. Veeraiyan, Member (Technical)
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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
CCE Raipur Appellant
[Rep. by: Shri S. Kumar,DR]
Versus
Pankaj Oxygen Ltd. Respondent
[Rep.by : Written submission]
Coram: Honble Mr. Justice S.N. Jha, President
Honble Mr. M. Veeraiyan, Member (Technical)
O R D E R
Per M. Veeraiyan:
This is an appeal by the Department against the order of Commissioner (Appeals) No.91/RPR-I/2005 dated 12.8.2005.
2. None appears for the respondent. Heard the learned DR.
3. The respondent is a manufacturer of Oxygen Gas and Dissolved Acetylene Gas which are transported in specifically designed vehicles to various customers/destinations. It is stated that the respondent collected a sum of Rs.38,48,340/- during the period January 2002 to March 2003 from their buyers in addition to price indicated in their invoices towards transportation charges. The original authority held that the amounts collected in excess of the invoiced price represented was towards loading of filled cylinders, transportation of filled cylinders, unloading of filled cylinders, loading of empty cylinders in the premises of the buyer and transportation of empty cylinders from the customer to the factory premises held that the same is includible in the transaction value on the ground that the exact amount of freight from their factory gate to the customers premises has not been indicated in the invoice. They have relied on the clarification of the Board vide Circular No.643/34/2002-CX. dated 1.7.2002 (S.No.2) relating to freight charges. On appeal, Commissioner (Appeals) relying on the decision of the Honble Supreme Court in the case of Indian Oxygen Ltd. Vs. CCE, 1988 (36) ELT 723 (SC) allowed the appeal of the assessee.
4. Learned DR submits that the assessee having not indicated the actual freight from the factory gate, the same cannot be allowed to be excluded. He also submits that the loading charges of the filled cylinders within the factory is definitely includible in the assessable value.
5. It is not disputed that the freight incurred from factory to the customers premises are excludible. It is also not disputed that the equalized freight is also excludible. The Boards instructions stated by the learned DR also holds that if, however, only the cost of transportation has been indicated in the invoice without any breakup for the forward and return journey, normally it should be accepted as the cost of transportation from the place of removal to the place of delivery. In this particular case where the gases are transported in a specially designed vehicle, the details furnished by the assessee towards the freight needs to be accepted in the absence of contrary evidence. Therefore, the decision of the Commissioner (Appeals) does not warrant any interference. Appeal by the Department is rejected.
[Dictated and pronounced in the open Court] [Justice S.N. Jha] President [M. Veeraiyan] Member (Technical) nk