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2023 (5) TMI 890 - CESTAT MUMBAIPlace of removal - valuation of goods - inclusion of recovered freight charges from their EPD (Project Division) by way of debit notes, in the assessable value - Department’s contention is that EPD (Project Division) in the place of removal and hence the freight charges recovered from the factory to the place of removal is to be included in the transaction value. What is the place of Removal in the present case? HELD THAT:- From the perusal of the invoices, it is quite evident that the goods were directly dispatched by the appellant from their factory to the site of the ultimate customer - The manner of preparation of invoice has been recognized by the Board by way of Circular No. 96/7/1995 dated 13,02.1995, clarifying in respect of the admissibility of Modvat Credit to the consignee holding that The duplicate copy of the manufacturer’s invoice under Rule 52A will serve as cover for transport and for availment of Modvat by the end user. Undisputedly the goods are directly dispatched from the factory premises of the appellant to the project site. Further the invoice also shows that the insurance against it has been paid by the customer for transportation of the goods and has been borne by the customer and not by the appellant. Freight also is shown to have been paid separately over and above the invoice value - No evidence has been produced by the Revenue at any time of proceedings to show that the goods were cleared by the appellant from their factory to EPD Chennai and thereafter from Chennai to the project site. In absence of any such evidence showing transportation of the goods to the premises of EPD Division, the entire premise on which the case is based has to fail on factual basis. In the case of COMMNR. OF CENTRAL EXCISE, NAGPUR VERSUS M/S. ISPAT INDUSTRIES LTD. [2015 (4) TMI 73 - SUPREME COURT] after considering Rule 5 and Rule 7 of Central Excise Rules, 2002, Hon’ble Supreme Court has held that Tribunal has correctly arrived at a categorical finding that the respondent is not responsible to pay the cost of transport from the place of removal to the place of delivery i.e. from the factory gate to the depot separately. In terms of Rule 5 of the Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000, such a cost of transport which is also separately shows, is not includable in the valuation for the purpose of excise duty. In the case of BATHINDA INDUSTRIAL GASES PVT LTD. VERSUS COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX, CUSTOMS, & EXCISE BHOPAL [2022 (12) TMI 48 - CESTAT NEW DELHI] it was held that The freight charges are not includible in the assessable value of liquid CO2 those being separately charged in the invoices and the gas was sold at the time of clearance from the factory of the appellant. The authorities below are held to have wrongly confirmed the duty demand against the appellant on the basis of inclusion of freight charges in assessable value. There are no merits in the impugned order - appeal allowed.
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