TMI Blog2013 (7) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and Commissioning Charges – Held that:- Excise duty is on manufacture. Erection and Commissioning is in the nature of a service and the apex court had held in the case of Thermax Ltd [1998 (4) TMI 134 - SUPREME COURT OF INDIA] that payments made towards erection and commissioning cannot form part of assessable value of excisable goods – Decided against the Revenue. - Appeal Nos. E/1000 to 1002/2004 - Final Order Nos. 40251-40253/2013 - Dated:- 3-7-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant: Shri K.S.V.V. Prasad, JC (AR) JUDGEMENT Per Mathew John: There are three appeals being decided in this proceeding. When the case was called none appeared on behalf of the respondent. There is request for adjourning the case on the ground that the respondent had to appear before the Karnataka High Court. In the past when the case came up on 08/02/11 and then on 21/06/11, 05/07/11 and 20/02/13 also, the case was adjourned at the request of the advocate. These appeals were filed during the year 2004 and yet to be heard on merits because the Counsel has been seeking adjournments regularly. We do not consider it proper to give any more adjournment in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g separate invoice. Commissioner (Appeal) relied on the decision of the Tribunal in Shasun Chemicals and Dyes Ltd reported at 2003 (58) RLT 884 and dropped the demand. (ii) Duty was demanded on items like acoustic enclosures supplied by the respondent along with DG sets, value of which was separately billed but not included in the assessable value. The Commissioner (Appeal) held that acoustic enclosure is an optional item. There is no finding by the adjudicating authority or the Commissioner (Appeal) that this is a bought out item. On the contrary there is finding by adjudicating authority that the respondent did not produce any evidence to show that the goods were bought out. The Commissioner (Appeals) relied on the following decisions while taking his decision: a) Sriram Bearings Ltd. 1997 (91) ELT 255 (SC) b) Jaya Engineering Works 1997 (90) ELT 19 (SC) c) CCE Vs Krishna Pumps - 1997 (91) ELT 9 d) CCE Vs Flalet India 1998 (98) ELT 243 e) CCE Vs Tractor Materials - 1996 (86) ELT 685 f) Eureka Forbes 1996 (83) ELT 334 g) CCE Vs Fuse Bare Elforo Ltd. 2000 (116) ELT 279 h) Bajaj Auto Ltd. 2000 (120) ELT 668 i) Schenek Johnson Nicholson Ltd. 2002 (48) RLT 449 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4 (1) (a) and 4 (3) (c) of Central Excise Act, 1944 the freight charges up to the place of removal were to be included in assessable value. 8.2 Arguing the case of Revenue, Ld. A. R. submits that in this case the sale was to take place at the premises of the respondent. The sale was complete only when the goods were erected and commissioned. So according to him, the transportation charges up to the place of removal and also the erection and commissioning charges will form part of the transaction value as defined in section 4 of Central Excise Act 1944. 8.3 We note that adjudication order alleges that freight and unloading charges were collected through separate invoices. In the grounds for appeal before this Tribunal itself an apparent contradiction is coming out. Para 2 of the appeal memorandum states that separate invoices were raised for transportation charges. Ground (a) for the appeal states that charges for transportation is not shown separately. So it is not as if the transportation charge is not known separately. The argument is that it is not indicated in the same invoice. No ground is made out that the transportation charges are far in excess of the actual transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the main goods which is faulty argument. If the goods like acoustic enclosure is manufactured in the factory of respondent and cleared, excise duty is payable on it whether it is cleared along with DG sets or separately. Since the respondents are not in a position to demonstrate that the items in question were not manufactured by them the appeal filed by Revenue in this respect is allowed. 10. Erection and Commissioning Charges 10.1 Excise duty is on manufacture. Erection and Commissioning is in the nature of a service and the apex court had held in the case of Thermax Ltd (supra) that payments made towards erection and commissioning cannot form part of assessable value of excisable goods. Of course this decision was prior to the introduction of the concept of transaction value as introduced from 1-7-2000. The definition of transaction value in section 4 (3) (d) is reproduced below: transaction value means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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