TMI Blog2007 (11) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided against Revenue. - Appeal No. E/2891/2001 - Final Order No. A/877/WZB/2007/EB - Dated:- 23-11-2007 - M.V. Ravindran, Member (Judicial)and , K.K. Agarwal, Member (Technical) and Jyoti Balasundaram, Vice President P.M. Gavande, JCDR and U.K. Jadhav, JDR for the Appellant Padmavati M. Patil, Adv. for the Respondent JUDGEMENT Per M.V. Ravindran : This appeal is directed against the order-in-appeal no. ZBN/357/MV/2001 dated 03/07/2001. 2. The issue involved in this case is regarding the demand of differential duty from the respondent on the ground that the respondent have claimed deductions in respect of freight charges and discounts without any documentary evidence. Various show cause notices were issued proposing to disallow the deduction claimed in respect of freight charges on the ground that the respondents are unable to produce any documentary evidence that they have actually incurred the same. The adjudicating authority after considering the documents and certificate given by the Chartered Accountant came to the conclusion that the respondents are eligible for deductions of actual average freight charges @2.47%, 2.13% and 1.93% for the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Popular Gases vs. CCE, Calicut, reported at 2006 (72) RLT 682 (CESTAT-Bang.). 5. Considered the submissions made at length by both sides and perused the records. 6. For the proper appreciation of the facts, we called for the copies of the show cause notices. The allegations in the show cause notice is as under:- Cable Corporation of India Ltd,, Borivali(E), Mumbai-66 are the manufacturer of Electric Wires and cables falling under Chapter heading no. 8544.00. They have claimed freight charges and discount on the assessable value under the price list no. 456/91 dated 16/10/91 without any documentary evidence to support such deductions. Therefore, a duty @25% Basic + 10% Special is recoverable on the differential value of ₹ 80,988.00 for the period November 91 and December 91. 7. The above reproduced allegations are identical in all the eight show cause notices, which were adjudicated by the adjudicating authority. It can be seen from the above reproduced allegation that the revenue intended to disallow the entire deduction claimed on discounts and freight charges to the respondent. The adjudicating authority at the time of adjudication came to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectly followed the law as settled by the Hon'ble Supreme Court and various decisions of the Tribunal, while setting aside the order-in-original. 8. Accordingly, we do not find any merits in the appeal filed by the revenue and the same is rejected.Per K.K. Agarwal : 9. I have gone through the proposed order by my Ld. Brother Member (Judicial). Since I am not in agreement with the order proposed by my Ld. Brother, I am recording a separate order. 10. The brief facts have already been narrated by my Ld. Brother. All that I want to emphasize is that in this case what was claimed by the appellant in their price list was a deduction of freight actually incurred by it and even though the price list indicated an average freight on the basis of the expenses incurred on account of freight in the preceding year, it was only provisional and all the three price lists furnished by the appellant established the fact that the assessments were provisional. In a situation where discount and freight like turn-over tax and deduction on account of freight are claimed, the assessments are made provisional subject to production of the documents and determination of the actual amount incurre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sportation charges and once there is a difference between the factory gate price and the depot price, the difference has to be considered as on account of transportation charges and if actual transportation charges are found to be less than the difference calculated in above manner, then the same has to be considered as a profit made on transportation and not on the goods. This was in view of the fact that when no transportation was involved/ a price 'X' was charged from all persons and the excess in depot price was explained to be on account of transportation charges on which certain profit had been made. In the case of Baroda Electric Meters also it has been stated that freight actually paid was less than the amount collected by way 6f freight and transportation charges. It means that the excess collection was made representing the same as freight charges only. If that was so it has to be considered as the profit on transportation and duty obvi-ously cannot be charged on the same. The decision in Pepsico India and oth-ers have simply followed the decision in the case of Baroda Electric Meters and invoices are not available for verification to see that whether the excess c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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