Custom, Excise & Service Tax Tribunal
M/S Ultratech Cement Ltd vs Commissioner, Central Excise & Service ... on 22 June, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/969/2007-DB [Arising out of OIO No.17/BVR/Commr/200, dt.21.05.2007, passed by Commissioner of Central Excise & Service Tax, Bhavnagar] M/s Ultratech Cement Ltd Appellant Vs Commissioner, Central Excise & Service Tax, Bhavnagar Respondent
Represented by:
For Appellant: Shri Anand Nainawati, Advocate For Respondent: Shri K. Sivakumar, Authorised Representative For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL) Date of Hearing/Decision:22.06.2015 Order No. A/10842 / 2015 dt.22.06.2015 Per: P.K. Das Heard both the sides and perused the records.
2. The Appellants were engaged in the manufacture of Cement and Clinkers. They were availing benefit of CENVAT Credit and paying duty on dutiable and exempted final product. The issue involved in this case is as to whether the transportation charges and loading/unloading charges would be included in the price of exempted goods for payment of 8% of the amount under Rule 6 of the CENVAT Credit Rules, 2004. We find that this issue is no more res integra in view of the various decisions of the Tribunal as under:-
a) Koya & Co. Construction Pvt Ltd Vs CCE Hyderabad-III 2007 (214) ELT 35 (Tri-Bang)
b) CCE Hyderabad Vs Koya & Co. Construction Pvt Ltd 2009 (236) ELT 316 (Tri-Bang)
c) Areva T&D India Ltd Vs CCE LTU Chennai 2010 (261) ELT 488 (Tri-Chennai)
4. The Tribunal in the case of Areva T&D India Ltd (supra) held that 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) of the said Rules, 2004. The Rule was amended on 01.04.2008. On a query from the Bench, the learned Advocate submits that the present case relates to prior to 01.04.2008. The learned Authorised Representative for the Revenue relied upon the decision of the Tribunal in the case of Timex Watches Ltd Vs CCE Noida 2004 (174) ELT 462 (Tri-Del). We find that the Tribunal in the case of Areva T&D India Ltd had analised this issue in detail as under:-
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 1-4-08, 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 v. 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.
5. In view of that, the demand of duty alongwith interest and penalty cannot be sustained. Accordingly, the impugned order is set aside. The appeal filed by the Appellant is allowed.
(Dictated & Pronounced in Court) (P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial) cbb 3