2025 (3) TMI 1484 - AT - Central Excise

Calculation of excise duty - non-inclusion of freight charges collected from the customers in the assessable value of the goods delivered at the buyer s premises during the period April 2007 to November 2015 - extended period of limitation - HELD THAT - The holistic reading of contract as a whole would indicate that sale in this case is on FOR basis and it is actually effected at the buyer s premises. In other words point of sale is at the buyer s premises. On the issue of the includability of freight insurance etc. there are catena of judgments passed by Hon ble Supreme Court High Courts and Tribunals. Essentially one set of judgments has relied on the judgment of Hon ble Supreme Court in the case of Ispat Industries 2015 (10) TMI 613 - SUPREME COURT whereas another set of judgments has relied on the judgment of Hon ble Supreme Court in the case of Roofit Industries 2015 (4) TMI 857 - SUPREME COURT and Emco Ltd 2015 (8) TMI 200 - SUPREME COURT . While as per Ispat Industries judgment buyer s premises can never be the place of removal but as per the judgment in Roofit Industries and Emco Ltd the place of removal has to be determined on the basis of factual matrix including the point at which sale has actually taken place. Therefore when the sale is clearly on FOR basis following the judgments in the case of Roofit Industries and Emco Ltd the place of removal will be at the buyer s premises and obviously the cost of transportation insurance etc. if any incurred by the assessee are required to be included in the assessable value. However it is always important to decide as to what shall be the place of removal having regards to the factual matrix and relevant documents. Therefore in case it is clearly established that the sale has not taken place at the factory and it has been effected only at the buyer s premises then such costs would be includable in the assessable value. It is found that both in the OIO as well as in the impugned order based on the factual matrix it has been brought out that the contract was on FOR basis as thus the factual matrix was more clearly covered by the judgment in the case of Roofit Industries and Emco Ltd. - placing reliance on the judgments the Commissioner (Appeals) has rightly held that in the given factual matrix the judgments in the case of Roofit Industries and Emco Ltd are relevant and not that of Ispat Industries as clearly the price is not ex-works. There are no infirmity in the impugned order passed by the Commissioner (Appeals) insofar as merit is concerned. Extended period of limitation - penalty - HELD THAT - Adopting a method suitable or beneficial to appellant would be on account of their understanding of various judgments and is clearly an interpretational issue. It is also found that in the facts of the case there is no other positive evidence on record suggesting that the appellants have deliberately chosen not to pay Excise Duty on freight charges and suppressed any information with intent to evade the payment of duty. Therefore the invocation of extended period and imposition of penalty under section 11AC(1)(b) are not sustainable. Therefore the impugned order to the extent of invoking extended period or imposition of penalty under section 11AC(1)(b) is not tenable and is accordingly set aside. Conclusion - The appellant is liable to pay excise duty inclusive of freight charges as the place of removal is the buyer s premises under the facts of this case but the extended period of limitation and penalty under section 11AC(1)(b) are not justified and are set aside. Appeal allowed partly.

Summary

The core legal questions considered in this judgment revolve around the determination of the place of removal of goods under the Central Excise Act, 1944, specifically whether freight charges collected from customers for delivery of goods to their premises should be included in the assessable value for excise duty purposes. The issues also include the applicability of extended period of limitation and penalty under section 11AC(1)(b) of the Central Excise Act in the context of alleged non-inclusion of freight charges in the assessable value.

At the heart of the dispute is whether the sale of goods took place at the factory premises (ex-works) or at the buyer's premises (FOR basis), which directly impacts whether transportation charges form part of the assessable value. The appellant contended that the sale was ex-factory and that freight charges collected separately were not includable in the assessable value. The Revenue contended that the sale was on FOR basis, with delivery and risk transfer at the buyer's premises, thus freight charges must be included in the assessable value.

Issue-wise detailed analysis:

1. Determination of Place of Removal and Inclusion of Freight Charges in Assessable Value

Relevant Legal Framework and Precedents: The key statutory provisions considered include section 4 of the Central Excise Act, 1944, which defines the place of removal, and section 19 of the Sale of Goods Act, 1930, which governs passing of property in goods. The judgment also extensively relies on Supreme Court decisions in CCE, Aurangabad Vs Roofit Industries and CCE, Mumbai-III Vs Emco Ltd, which held that in cases where sale is on FOR basis, the place of removal is the buyer's premises and freight charges are includable in assessable value. Conversely, the Supreme Court decision in CCE, Nagpur Vs Ispat Industries Ltd held that the place of removal cannot be the buyer's premises in ex-factory sales, and freight charges are not includable.

Court's Interpretation and Reasoning: The Tribunal examined the factual matrix, including purchase orders and contract terms, which showed that goods were to be delivered, installed, and commissioned at the buyer's site, with the supplier bearing risk until receipt in good condition at the destination. The payment terms also indicated that acceptance was conditional upon installation and testing, negating the possibility of an unconditional sale at the factory gate. The Tribunal found that the contracts were on FOR basis rather than ex-works, thus the place of removal was the buyer's premises.

Key Evidence and Findings: Sample purchase orders revealed that price was not specified as ex-factory, and terms required installation, testing, and commissioning at the buyer's site before final acceptance and payment. The appellant separately charged for transportation and delivery, indicating retention of ownership and risk until delivery. The contract included obligations such as unloading, storage, insurance, and statutory clearances, reinforcing the conclusion that sale was effected at buyer's premises.

Application of Law to Facts: Applying the principles from Roofit Industries and Emco Ltd, the Tribunal held that since the sale was on FOR basis, the place of removal was the buyer's premises, and therefore, transportation and insurance charges incurred up to that point must be included in the assessable value for excise duty. The Tribunal distinguished the Ispat Industries judgment, finding it inapplicable due to differing factual circumstances.

Treatment of Competing Arguments: The appellant relied on Ispat Industries and several Tribunal decisions holding that in ex-factory sales, freight charges are not includable, and place of removal is the factory gate. The Tribunal acknowledged these but emphasized that the factual matrix in the present case aligned with the Roofit Industries and Emco Ltd line of decisions. The Tribunal also noted that the issue is no longer res integra, referencing a Larger Bench decision in Ramco Cements Ltd which reconciled these judgments and held that in FOR sales, place of removal is the buyer's premises.

Conclusions: The Tribunal concluded that the appellant was liable to pay excise duty on the assessable value inclusive of freight charges, as the sale was on FOR basis with place of removal at the buyer's premises.

2. Invocation of Extended Period of Limitation and Penalty under Section 11AC(1)(b)

Relevant Legal Framework and Precedents: Section 11AC(1)(b) of the Central Excise Act permits extended period of limitation and penalty where there is suppression of facts or fraud. The Tribunal considered various Supreme Court decisions including CCE Vs India Carbon Ltd, Escorts JCB Ltd, Prabhat Zarda Factory Ltd, and Aditya Birla Insulators Ltd, which reflect differing views on inclusion of freight charges and the complex nature of the issue.

Court's Interpretation and Reasoning: The Tribunal observed that the issue of includability of freight charges was subject to conflicting judicial opinions and clarifications by the Board only issued in 2018. The appellant's approach was based on an interpretation of the law rather than deliberate evasion.

Key Evidence and Findings: There was no positive evidence indicating deliberate suppression or intent to evade duty. The appellant's stance was an honest interpretation of existing judgments and circulars.

Application of Law to Facts: Given the interpretational nature of the dispute and absence of malafide intent, the Tribunal held that invocation of extended period and penalty under section 11AC(1)(b) was not justified.

Treatment of Competing Arguments: While the Revenue argued for extended period and penalty, the Tribunal found the appellant's position reasonable and supported by judicial precedents, thus negating allegations of suppression.

Conclusions: The Tribunal set aside the invocation of extended period and penalty under section 11AC(1)(b).

Significant holdings established by the Tribunal include the following:

"The place of removal has to be determined on the basis of factual matrix including the point at which sale has actually taken place. Therefore, when the sale is clearly on FOR basis, following the judgments in the case of Roofit Industries and Emco Ltd (supra), the place of removal will be at the buyer's premises and obviously the cost of transportation, insurance, etc., if any, incurred by the assessee are required to be included in the assessable value."

"In the facts of the case, the contracts were not unconditional as there were conditions specified for acceptance of goods. The sale actually has taken place at the buyer's premises."

"The invocation of extended period and imposition of penalty under section 11AC(1)(b) are not sustainable as there is no positive evidence on record suggesting deliberate suppression or intent to evade duty."

Core principles established include the necessity to examine the factual matrix and contractual terms to determine the place of removal under section 4 of the Central Excise Act, and that in FOR sales, freight and insurance charges up to buyer's premises are includable in assessable value. The judgment clarifies that the applicability of Ispat Industries is limited to ex-factory sales with unconditional passing of property at factory gate, and does not apply where sale is conditional and delivery is at buyer's premises.

Final determinations are that the appellant is liable to pay excise duty inclusive of freight charges as the place of removal is the buyer's premises under the facts of this case, but the extended period of limitation and penalty under section 11AC(1)(b) are not justified and are set aside, resulting in partial allowance of the appeal.