TMI Blog2012 (11) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise - application for waiver of pre-deposit allowed - E/1710/2011 - 265/2012-EX(BR)(PB) - Dated:- 15-2-2012 - Ms. Archana Wadhwa, Shri Mathew John, JJ. REPRESENTED BY : Shri Uday, Advocate, for the Appellant. Shri I. Beg, AR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. Appellants are manufacturers of yarn falling under Chapter 55 of the Central Excise Tariff. During the period Sep. 98 to Jun 99 they were selling a part of their final products at the factory gate. For such goods they were collecting a percentage of the sale price of the goods as freight and insurance. Remaining final products were cleared from their factory to their depot on payment of duty and selling the goods from depot. While c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e stage of notice itself. In the first round the Commissioner (Appeals) confirmed the demand without giving opportunity to the appellants to prove their case that the freight charged was for transportation from depot to consigners premises. The Tribunal remitted the matter to the adjudicating authority to decide the matter afresh giving an opportunity to the appellants to present their case. In the second round of litigation the case made out by the Appellants is that freight and insurance charges are not for transportation from factory to depot but from depot to the customer and to support this claim they have submitted four declarations given by their customers. 4. The case of Revenue is that the amount recovered towards freight and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal position. Appellant s contention is that when goods were sold from the depot, they were charging freight element from depot to the customer s premises and this is the same amount shown in the invoices for clearance from the factory. We see that the orders of the lower authorities do not rebut this claim of the appellant. The demand is confirmed for the reason that freight is charged on equalized basis and hence freight will form part of assessable value. 6. The matter whether equalized freight has to be considered as part of assessable value has been contested by Revenue in many cases with reference to different legal position prevailing in Section 4 of the Central Excise Act and the Valuation Rules. Mostly Revenue has lost their cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontested this matter with some chance of success only if there was an effort to show that the value of goods were being realized as freight. There has been no effort to do so. The department did not have the tenacity to make even a prima facie case based on the figures in the balance sheet or ledgers of the appellants which they could have accessed. A simple approach of confirming the duty on the entire amount realized towards freight stating the reason that it is on equalized basis cannot prima facie succeed. 10. Since excise duty cannot be charged on freight collected whether charged on equalized basis or otherwise we see merit in the argument of the appellant and allow the application for waiver of pre-deposit of dues arising from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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