TMI Blog2012 (9) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... eight has come out as profit on such account, which cannot form part of assessable value - demand of differential duty is not sustainable. - E/EDM-358/2005 - A-234/KOL/2011 - Dated:- 27-7-2011 - S/Shri M.V. Ravindran, Mathew John, JJ. REPRESENTED BY : Shri S. Misra, SDR, for the Appellant. Shri Samir Chakraborty, Advocate, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. This Appeal is filed by the Revenue against the Order-in-Appeal No. 42/Kol-III/2005 dated 28-3-2005. 2. The issue involved in this case is regarding the demand of differential duty and additional income shown by the Respondent Assessee in the Balance Sheet arising out of the transportation charges/freight charges. The Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was differentiation in pricing of the goods sold to Government/Semi-Government buyers from those sold to private buyers, and therefore, the concept of class of buyers with reference to sales to Government/Semi-Government buyers, as imported by the lower authority, has hardly got any effect for decision in this case. The lower authority has not accepted DGS D rate contract price as genuine ex-factory price on the ground that the appellant alike other concerns used to quote lower price to achieve contract for bulk supply and, thereafter, make good the losses on account of lower pricing by way of inflating freight charges, and facilitate such design, they opted for road transport instead of Railways. In this context, I find that in trade parl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal has not accepted the contract price on the ground that there was no common pricing and instead, there were several negotiated prices and realization on account of freight was made through separate contract. But in the instant case, DGS D rate contract has been adopted as common ex-factory price, and, therefore, the Tribunal s decision is distinguishable. Further, in case of Indian Hume Pipe, there was no factory gate sale whereas in this case there was factory gate sale, and, thus, the ratio of the Tribunal s decision is not applicable. Therefore, to sum up, it can be held that DGS D rate contract is ascertainable ex-factory price, and extra realization on account of freight has come out as profit on such account, which cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). It is his submission that the Respondent Assessee has shown the additional amount as income arising out of transportation/freight charges. He also would rely upon the decision of the Tribunal in the case of Baroda Electric Meters and other decisions. 5. On careful consideration of the submissions made by both sides and on perusal of the records, it is seen that the learned Commissioner (Appeals ) findings recorded here-in-above, clearly indicate insufficiency in evidence relied upon by the Department, to come to a conclusion that the amount of realization by the Respondent Assessee as transportation charges had anything to do with the depression of price of the goods supplied under DGS D contracts and before us also, the Revenue has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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