9911796707
TMI Blog2016 (6) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... alue as the said charge was leviable for delivery just outside the factory gate also, where no transportation is involved. On the basis of this, it was argued that the said amount is not related to transportation but is an additional consideration. A show-cause notice demanding duty on this alleged additional consideration was issued to the respondents. The said show-cause notice was dropped by the Commissioner holding that basic prices of MS/HSD are inclusive of transportation charges. The Commissioner held that w.e.f. 1.7.2000, the valuation of excisable goods is the transaction value and transportation/freight charges are admissible for deduction provided that these charges are shown in the invoices separately. The Commissioner observed that in case of sale to retail outlet situated at a distance of 5 Km, and the outlet of a dealer at Nandgaon situated at a distance of 35 Km (within FDZ) freight charges shown uniformly @ Rs. 44/- per KL. On the basis of above facts and relying on the CBE&C Circular No. M.F. (D.R.) F. No. 354/81/2000-TRU dated 30.6.2000, the cost of transportation is outside the purview of levy of duty when such cost is shown separately in the invoice. Aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be passed on to consumers. In respect of products where currently 5% duty on assessable value is being absorbed in the Pool Account, the same should be passed on in the settling prices. OCC vide their Fax Message No. 4005 dated July 29, 2000 have advised that the delivery charges within FDZ for MS and HSD are revised to Rs. 44/KL and for ATF to Rs. 46.00/KL. Currently the delivery charges within FDZ included in the RPO Charges for MS is Rs. 7/KL. For HSD Rs and in AFS charges is Rs. 20/KL for ATF. This increase will be charged on for all customers in the selling prices. It was also advised that the delivery charges outside FDZ for MS, HSD and ATF are revised to Rs. 0.67/KL/Km. This increase will be passed on for all customers in the selling prices. However, in case of MS/HSD for the areas covered under the FTX scheme, the same will be borne by the Oil Pool Account." He argued that amount of Rs. 44/KL collected in respect of delivery within the FDZ is already included in the price fixed by OCC. He argued that amount of Rs. 44/KL collected by the appellant is an additional consideration. 3.1 Learned AR also produced certain invoices wherein delivery charges @ Rs. 44/KL was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... label as second level wholesale. Now, we find that the law on exclusion of transport charges from beyond the factory gate of excisable goods is a clearly settled one, as can be seen from the following decisions :- 1979 (4) E.L.T. (J 490) (Ker.) 1980 (6) E.L.T. 193 (Bom.) 1980 (6) E.L.T. 220 (Bom.) Learned Additional Solicitor General of India also fairly conceded. Therefore, the freight element in this "second level wholesale" (from installation/depot to pump) is clearly deductible from the assessable value under Section 4 irrespective of whether quantum thereof is fixed by OCC or not. The Revenues argument on averaging of transport costs also does not hold much water, as this issue is finally settled by the Hon'ble Supreme Court in the case law of Baroda Electric Meters as reported in 1997 (94) E.L.T. 13 (S.C.) = 1998 (74) ECR 721 (S.C.). It is, therefore, now well-settled law, that where such freight charges are averaged on regional or national basis (to keep retail prices to specified levels throughout the country), then even such average freight is deductible. We, therefore, conclude that the freight element in RPO charges is deductible from the assessable value." He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of LPG cylinder up to dealer premises, in the case of Idcol Ferro Chrome & Alloys, the amount collected was in respect of transportation charges, and in the case of Rine Engineering Ltd., the issue was collection of freight charges and in the case of Cable Corporation of India Ltd., the issue was freight charges. I would like to mention here in the case of Cable Corporation of India Ltd., there was a difference of opinion and the matter was referred to 3rd Member. The 3rd Member, following the judgment of Honble Apex Court in the case of Baroda Electric Meters Ltd., agreed with the view taken by ld. Member (Judicial). It is also seen that in the recent judgment of co-ordinate Bench in the case of Mercedes Benz India Pvt. Ltd. 2010 (260) E.L.T. 149 (Tri.-Mumbai), the co-ordinate Bench has taken a view that post 1-4-2000, when the provision of transaction value was brought into, the law position remains the same. I may respectfully reproduce the relevant portions of the judgment. "6. We are also of the view that the decision of the Honble Supreme Court with regard to the nature of the excess freight would not have been different, had their lordships considered the case for any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
