9911796707
TMI Blog2012 (5) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... have received 3% gross freight charges from their transporters which is in excess of the freight incurred in transferring the finished goods from their factory to their customers' premises. The excess amount thus collected from the transporters are alleged to be added to the value of the goods during the period from 1-7-2000 to 31-3-2005. Consequently, differential duty of Rs. 36,16,292/-(Rupees Thirty Six Lakhs Sixteen Thousand Two Hundred and Ninety Two only) was demanded from the respondents on the ground that excess of actual freight collected from the transporters @ 3% of the total transport charges should not be added to the assessable value of the finished goods. The said demand was later confirmed by the adjudicating authority and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of freight collected by the respondents from the transporters is required to be added to the assessable value of the finished goods in terms of Section 4(1)(a) of Central Excise Act, 1944. The ld. A.R. has referred to the Clause (3) and (7) of the Letters of Award (LOA) by the respondents to various transporters wherein it is stipulated that the transporters should offer a discount of 3% on the freight turnover for the calendar month and the said amount shall be paid by an amount paid by 10th of the succeeding month. He has submitted reasons for the said discount to be offered to the respondents had not been mentioned in the said letters. Further he has submitted that the said 3% is nothing but storage, loading and un-loading of good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-102. The ratio of the decision was also relied upon in the case of Associated Stips Ltd. reported in 2002 (143) E.L.T. 131 and also in the case of Himalayan Pipe Industries reported in 2003 (151) E.L.T. 574. Going by the said decisions, I find the sale takes place at the factory of the appellant. As per sub-section (2) of Section 23 of the Sale of Goods Act, where in pursuance of the contract, the seller delivers the goods to the buyer or to a earner for the purpose of transmission to the buyer and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. The facts in the present case are identical and thus I hold that the sales by the appellant had taken place at their factory ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame as an additional consideration in relation to sale of goods, since it is a deal in relation to transport of goods where the buyer is not a party to it and while all the paraphernalia relating to sales is complete at the factory gate. Thus the appellant admittedly sold their goods at the factory gate to the independent wholesale buyers and the Revenue has not been able to produce any evidence on record that apart from the consideration received by the appellant for the sale of such goods at the factory gate, any other consideration flowed back to them from the independent wholesale buyers. As such I hold that the 3% flow back is not liable for inclusion in the assessable value and accordingly, the appeal succeeds on merits. 6. We d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
