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TMI Blog2016 (2) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts towards freight charges from the buyers than the amount actually incurred by them. Such excess amount is sought to be added in the assessable value subjected to levy. The Original Authority passed order dated 30.11.2005 covering the period July, 1999 to March, 2005 and confirmed the demands. He imposed equal amount of penalty on the appellants. 2. Aggrieved by the said order, appeals were filed and the ld. Commissioner (Appeals) upheld the said original order. Aggrieved by the impugned order, the appellant is before us. 3. The main ground of appeal is that freight is not part of the assessable value when the sales are effected at the factory gate. The cost of transportation of the goods from the factory gate to the buyer is excludi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Project's site. 7. Ld.Counsel intimated that as per purchase order it is clear that the place of removal is ex works of the appellant and as such, the amount of freight shown in the purchase order cannot be considered for valuation purposes. He relied on the Hon'ble Supreme Court's decision in the case of Indian Oxygen Ltd. reported in 1988 (36) ELT 723 (SC). 8. Ld. AR opposed the appeal on the ground that the place of delivery being at the buyers end only. In case the transportation is undertaken by the appellant, only actual freight can be excluded. He reiterated that in terms of Rule 5 of Central Excise Valuation Rules, 2000 amount which is not attributable to the freight is to be added in the assessable value. 9. Heard both the sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds on pre-agreed cost which is also indicated in the purchase order. There are instances when the actual cost of transportation is either higher or lower than the cost of freight mentioned in the purchase order. When the ex factory sale value is available, the place of removal being determined as ex factory, the question of adding anything over and above the said ex factory price can arise only if the transaction value is not true to the provisions of Section 4 (1)(a) and is tainted. There is no finding by the lower authorities to this effect. The only ground on which certain additions on the ex factory price was sought to be made is that the freight elements shown in the purchase order is not the actual freight amount. So, the excess, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges cannot be considered for addition. In the case of Filament India Vs. CCE, Jaipur reported in 2003 (160) ELT 314 (Tribunal-Delhi), the Tribunal held that when the sale and delivery take place at the factory gate and freight charges, which are in relation to an independent transaction is mentioned separately in the invoices, the amount of freight has no relevance for valuation purposes.
11. Considering the above discussion, we find that there is no justification for any addition to the ex factory transaction value in the present case. We accordingly set aside the impugned order and allow the appeal with consequential relief, if any.
[operative part of the order already pronounced in the open court] X X X X Extracts X X X X X X X X Extracts X X X X
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