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TMI Blog2016 (3) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Revenue against the same Order-in-Appeal. 2. Shri Pawan Kumar Singh, Supdt. (A.R.) appearing on behalf of the Reverse argued that Commissioner (Appeal) has no power to adjudicate the case and the case should have been remanded back by Commissioner (Appeal) to the Adjudicating authority instead of passing a final order. 3. Ms. Shreya Dahiya (Advocate) appearing on behalf of the appellant argued that the issue involved in the present appeals is regarding inclusion of freight/insurance charges from the factory gate to the buyers premises and inspection charges, at the instance of the buyers, in the assessable value under Section 4 of the Central Excise Act, 1944. Regarding inclusion of inspection charges at the instance of the buyer it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is required to be excluded from the transaction value. Learned Advocate relied upon the case law of Apex court in Commissioner of Customs & Commissioner of Customs, Nagpur Vs. M/s. Ispat Industries ltd. - 2015-TIOL-238-SC-CX 3.2 It was also argued on behalf of the appellant that freight and insurance is charged separately in the invoices and the goods are sold at the factory gate which was the place of removal at the relevant time as per Section 4 (3) (C) of the Central Excise Act, 1944. 4. Shri pawan Kumar Singh, Supdt. (A.R.) appearing for the Revenue argued that inspection of the goods is done in the factory of the appellant before clearance and the contract is on FOR destination basis, therefore, not only the inspection charges are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944. 6.1 The 'place of removal' during the relevant period was defined in Section 4(3) c) of the Central Excise Act, 1944 as follows: " place of removal" means- (i) a factory or any other place ore premises of production or manufacture of the excisable goods; [ * * *] (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty;" 6.2 Rule 5 of the Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2002 (Valuation Rules 2002) is also relevant and is reproduced below: "Where any excisable goods are sold in the circumstances in clause (a) of sub-section (1) of section 4 of the Act except the circumstances in which the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely indicated in the invoices. Hon'ble Apex court in the case of CC&CE, Nagpur Vs. M/s. Ispat Industries Ltd. (Supra) while deciding this issue held as follows: "21. The actual cost of transportation from the place of removal up to the place of delivery of excisable goods is excluded from the computation of excise duty provided it is charged to the buyer in addition to the price of goods and shown separately in the invoices for such goods. Interestingly, despite the substituted Section 4 not providing for a depot or other premises as a place of removal, Rule 7 deals with the normal transaction value of goods transferred to a depot or other premises which is said to be at or about the same time or the time nearest to the time of removal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be excluded for the purposes of determining the value of the excisable goods," 23. It is clear, therefore, that on and after 14.5.2003, the position as it obtained from 28.9.1996 to 1.7.2000 has now been reinstated. Rule 5 as substituted in 2003 also confirms the position that the cost of transportation from the place of removal to the place of delivery is to be excluded, save and except in a case where the factory is not the place of removal. 24. It will thus be seen that, in law, it is clear that for the period from 28.9.1996 up to 1.7.2000, the place of removal has reference only to places from which goods are to be sold by the manufacturer, and has no reference to the place of delivery which may be either the buyer's premises or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows, while distinguishing Larger Bench case law of Maruti Suzuki India Ltd. Vs. Commissioner of Central Excise, Delhi [2010 (257) ELT 226 (Tribunal-LB)] "Ld. A.R. has relied upon Larger Bench judgment in the case of Maruti Suzuki India Ltd. Vs. Commissioner of Central Excise, Delhi-III (supra) wherein it has been held that PDI charges are required to be included in the assessable value. However, it is observed from the case law that the issue before the Larger Bench, in the case of Maruti Suzuki India Ltd. (supra) was only on inspection doe on compulsory PDI done in all cases by the appellant in that case. It was not the case before the Larger Bench that PDI inspections were done at the instance of the buyer. In view of the interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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