TMI Blog2014 (7) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... very of gases to the customers. However, the differential freight would be includible only if the freight from the factory gate to the customers premise is includible in the assessable value and this can be done only if sales are on FOR destination basis in the sense that during transit, the risk of the loss of goods or damage to the goods is of the seller- manufacturer and the ownership of the goods during transit is of the manufacturer and freight is integral part of the value of the goods. It is not the case of Department that the invoices themselves mention the sales as FOR sales or that the supply orders placed by the customers mention the supply of gases on FOR basis. In fact, the invoices show the freight charges separately. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant from their customers towards freight was more than the expenses incurred by them on transportation and as such excess amount recovered from the customers towards freight was ₹ 92,26,000/-. The Department was of the view that this amount should form part of the assessable value of the gases sold. Accordingly, after issue of Show Cause Notice, the Jurisdictional Additional Commissioner vide order-in-original dt. 24.04.2012 confirmed the Central Excise duty demand of ₹ 12,54,681/- along with interest thereon under section 11AB in respect of clearances of gases during period from 2005-2006 to 2009-2010 and besides this imposed penalty of equal amount on the appellant under section 11AC. This demand was confirmed by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the invoices or any other documents which is shows that the sale were on FOR destination basis, that when the sales were at the factory gate, there is no question of including freight charges in the assessable value of the goods sold, even if the freight amount charged by appellant from their customers is more than the actual expenses incurred in running of trucks, that in any case, the differential freight would not be includible in assessable value, that in this regard she relied upon the judgment of the Apex Court in the case of Baroda Electric Meters Ltd. Vs. Collector of Central Excise, reported in 1997(94) ELT-13 (S.C.) and that in view of the above submissions, the impugned order is not correct. 4. Sh. Jayant Sahay, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods. In this case, though both the Lower Authorities have given finding that sales were on FOR destination basis, no evidence in this regard has been disclosed. It is not the case of Department that the invoices themselves mention the sales as FOR sales or that the supply orders placed by the customers mention the supply of gases on FOR basis. In fact, the invoices show the freight charges separately. In view of these circumstances, just because the customer wanted the appellant to supply the gases at their premises, it would not be correct to presume that sales were on FOR basis. There is also no allegation that the part of value of the goods was being recovered as freight charges by under declaring the value of the goods and inf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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