Transportation charges up to buyer's premise, if included in agreed price, count towards assessable value

[CA Bimal Jain]

The CESTAT, Kolkata, in M/S. SATYA MEGHA ISPAT PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, SHILLONG - 2023 (8) TMI 316 - CESTAT KOLKATA set aside the refund rejection order and held that in case where the sale took place at the buyer’s premises after accepting the goods post inspection, the price charged by the assessee till the place of sale including freight, etc. 

Facts:

M/s. Satya Megha Ispat Pvt. Ltd. (“the Appellant”) is engaged in the manufacturing of Ferro Silicon, MS Ingot and Runner& Risers, located in the notified area declared under Notification No.32/99-CE dated July 08, 1999 and was eligible for the exemption by way of refund of duty paid out of account current for a period not exceeding 10 years from the date of commercial production and the Appellant was availing the said benefit.

The Appellant was selling finished goods at fright on road (“FOR”) price which includes all the expenses up to the place of delivery for which the Appellant has valued the price of the finished goods including the freight element in the selling price. The Appellant paid the duty and claimed refund during the period September 2005 to June 2010 where all duty was paid in cash.

The Revenue Department (“the Respondent”) issued the show cause notice (“the SCN”) demanding back the erroneously refund claimed of INR 36,18,110/- by way of overvaluing the goods by including freight charges in the assessable value which is in violation of Rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 ("the Valuation Rules”).

The Adjudicating Authority vide an order (“the Order”) confirmed the demand along with interest and penalty.

Aggrieved by the Order, the Appellant filed an appeal before the Appellate Authority who vide an order (“the Impugned Order”) confirmed the order passed by the Adjudicating Authority.

Aggrieved by the Impugned Order, the Appellant filed an appeal before the CESTAT, Kolkata for quashing the Impugned order.

Issue:

Whether transportation charges are the part of assessable value sold on a FOR basis?
Held:

The CESTAT, Kolkata, in M/S. SATYA MEGHA ISPAT PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, SHILLONG - 2023 (8) TMI 316 - CESTAT KOLKATA held as under:

• Observed that, the contract executed by the Appellant was FOR contract, the contract orders specified ‘door delivery’ at all-inclusive prices. Moreover, neither did the invoices reflect the transportation costs separately nor were such charges recovered separately from the buyers.
• Further observed that, the sale of goods would take place at the premises of the buyers and that such premises would be considered to the Point of Sale, where the title and property in the goods were actually transferred.
• Opined that, the view that the invocation of Rule 5 of the Valuation Rules by the Revenue was misplaced since, the said Rule applied to cases only where goods were sold at the place of removal but were to be delivered elsewhere.
• Further opined that, the Appellant’s case fell within the purview of the exception to the Rule 5 of the Valuation Rules. The possession of the goods was transferred to the buyers and the sale took place at the buyer’s premises only upon the buyer’s accepting the goods after due inspection.
• Noted that, Rule 7 read with Rule 11 of the Valuation Rules, indicates that all charges up-to the place of sale are includible, including freight, etc., would be treated as the assessable value of the goods.
• Relied upon the judgement of the CESTAT, Kolkata in M/S. RNB CARBIDES & FERRO ALLOYS PRIVATE LIMITED AND OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE, SHILLONG - 2021 (9) TMI 29 - CESTAT KOLKATA wherein it was held that “erroneous” means involving error, deviating from law. An order cannot be termed as erroneous unless it is not in accordance with law.
• Held that, the Appellant has correctly assessed the value of the goods and paid duty thereon and rightly taken the refund as per the laws prevailing during such time.
• Set aside the Order of the Appellate Authority.

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