TMI Blog2013 (12) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... able. Extended period of limitation - The extended period could have been invoked in respect of the appellant - Once the duty liability is confirmed as payable, if extended period is invoked even penalty becomes payable - In this case only the refund claim has been rejected and the appeal is only against the rejection of refund claim - the testing conducted is a condition of sale and therefore, the cost of such testing is includable in the assessable value – thus the refund claim has been rightly rejected – Decided against Assessee. - Appeal No: E/824/2008 - FINAL ORDER No. 25761 / 2013 - Dated:- 24-6-2013 - SHRI B.S.V. MURTHY AND DR. D.M. MISRA, JJ. For the Appellant : Mr. N. Rajagopal, Consultant For the Respondent : Ms. Sabrina Cano, Superintendent (AR) Order Per: B.S.V. Murthy M/s. Versabyte Data Systems, the appellant herein, are engaged in the manufacture of Power Supply Units, (PSUs, in short), and parts of microprocessor units falling under Central Excise Tariff heading No.85043108, 84714100 and 8473301 in their factory. The power supply units and other goods are manufactured and supplied to the Government of India undertakings, under the Ministry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a reimbursement of the cost incurred by them and therefore not includable in the assessable value. He also submits that in this case the audit objection was raised in 2007 and a show-cause notice was issued in March 2008 and extended period has been invoked to demand duty from April 2005 to June 2007 and whole period is beyond the normal period of limitation. He also submits that when a demand is not sustainable without invoking suppression, the adjustment of the amount already paid by the appellants involving period beyond one year, is also contrary to law. If the amounts are paid, such amounts are bound to be refunded. If not assessees who are forced to make payment by the Revenue by using coercive action would be at a disadvantage when compared to others who are not compelled to pay or who do not pay. 3. On the other hand, learned AR would submit that in this case when we go through the purchase order, the purchase order simply shows that an amount of Rs.15,000/- will be payable extra and the unit should be supplied with ESS test certificate. The purchase order does not speak of any third party test and also does not speak of reimbursement of actual expenditure. It is an ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the purchase order, it becomes quite clear that ESS test is conducted in connection with the sale of goods and without an ESS certificate, the customer would not be willing to accept it and customer is willing to pay for the same. From the purchase orders, what emerges is both the purchaser and seller agree for the need of ESS test and the purchaser agrees to bear the cost and pay it to buyer. In such a situation, the transaction is clearly covered by the explanation to Section 4(1) of Central Excise Act, 1944. 7. Further we also note that Section 4(3)(d) gives the meaning of transaction value as under: Section 4(3)(d) 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 time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st whether it is done by third party or by the appellant themselves was includable if it was a condition of sale. 10. Another decision relied upon by the learned counsel was the decision in the case of Southern Power Equipment Co. Pvt. Ltd. vs. CCE, Bangalore-III: 2007 (214) E.L.T. 533 (Tri.-Bang.). This case is also not comparable on facts. In that case, the transportation charges were charged separately and testing charges were also charged separately and the price fixed in the tender and the contract received from the purchaser M/s. KIADB, a Government of Karnataka undertaking show that the work order and the invoices indicated separate collection of transportation and testing charges. It was not the case there that testing was a condition of sale and there is no such finding. Further, the value of the item supplied without including testing charges and transportation charges was available. There was no condition that KIADB would not buy without a testing being done. When the testing is optional and forms a separate part of the sale and without a test, value is available and in such case, it was held that testing charges cannot be included. Moreover, it is also not clear from ..... 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