TMI Blog1998 (6) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... issues being similar, they were heard together and are being considered by this Common order. 3. In Appeal No. E/V/217/98 there are 3 issues involved viz; (a) Inclusion of return freight charges of empty tankers/lorry with empty cylinders in Assessable value of the Chemicals manufactured and transported to buyer s door through contracted transporter; (b) Demand for duty on tankers fabricated on own account within the factory and mounted therein on duty paid truck chassis belonging to the contractors; and (c) Demand of differential duty of Rs. 5 lakhs (by adding to Assessable Values) collected as freight charges which is in excess of that paid to contractor. 4. In Appeal No. E/V/218/98 there are only two issues involved viz. at (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... None of these facts are disputed and are on record. 7. Revenue contends that while cost of outwards trip (with excisable goods loaded) is deductible from Assessable value, cost of return trip is to be included. 8. Heard ld. Sr. Advocate Shri M. Chandrashekaran and ld. Consultant Shri S.R. Narayanan for appellants and Shri R. Victor Thiagaraj, ld. SDR for Revenue. 9. Ld. Sr. Advocate argued that both outward inward (return) freight costs are deductible from Assessable Value on following grounds :- (a) freight charges recovered from buyers is as a whole for both trips taken together, but cost adjustment for return empty is built therein; (b) these are not general cargo M.V. but specialised and hazardous cargo carriers, hence they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 455 Jabalpur Oxygen - 1987 (30) E.L.T. 304 Pure Drinks - 1991 (56) E.L.T. 619 Baroda Electric Meter - 1997 (94) E.L.T. 13 Vijayawada Bottling - 1997 (94) E.L.T. 433 (j) Applying all these facts and case laws, to Section 4, they argued that as the Assessable Value was at the place and time of removal (i.e. their factory gate), therefore post-clearance freight was not includible in it. 10. Revenue contended that the basis of calculation of freight for return was different and was computed separately. On Bench pointing to the facts above in this respect, it was conceded that a lumpsum amount was charged for freight as a whole in the debit notes and mentioned in invoice. 11. Secondly, ld. SDR argued that in some cases, freight cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In view of these observations, we do not agree with the ld. Commissioner that transport (return) charges are to be added to the assessable value. That freight beyond factory gate is deductible was clearly settled by the decision in the case of Indian Oxygen (supra). Most others have cited referred to it or relied thereon and all have held so. Hence the case law on this is settled and the issue is res integra. If that be so, then, there is also no question of payment of differential duty on the Rs. 5 lakhs recovered in excess in a few stray cases, particularly as in the final tally, they ended up paying Rs. 92.5 lakhs more (in the case of Appeal No. E/V/217/98 only). Therefore, there is no flow back of any monies on account of such collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Act, 1985 (5 of 1986), manufactured in a factory and used within the same factory for building a body or fabrication or mounting or fitting of structure or equipment on a chassis of a motor vehicle of Heading No. 87.02 or 87.04 from the whole of the duty of excise leviable thereon which is specified in the said Schedule : Provided that appropriate duty of excise, on the said chassis, leviable thereon under the said Schedule or the additional duty leviable under section 3 of the Customs Tariff Act, 1975 (51 of 1975), as the case may be, has been paid". 19. A plain reading shows that nowhere it is provided therein that the tanker should be used only captively. It covers only materials used in fabrication and mounting, etc. to be us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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