TMI Blog2016 (10) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... laim for exemption and refund under Notification No.32/99-CE. Inspite of the specific directions from the bench appellant has not been able to bring on record that ownership of the goods, till their delivery at the doorsteps of the buyers, lies with them and that insurance of goods in transit is borne by the appellant. Hence, the appellant is not able to establish that the sales/clearances effected by them are on FOR destination basis. - Decided against the appellant - Appeal No. E/616/2007 - Order No. FO/A/76092/2016 - Dated:- 23-9-2016 - Shri H.K.Thakur, Member (Technical) And Shri P.K.Choudhary, Member (Judicial) Shri K.K.Banerjee, Advocate for the Appellant Shri S.Mukhopadhyay, Suptd. (AR) for the Respondent ORDER Per Shri H. K. Thakur 1. This appeal has been filed by the appellant against Order-In-Appeal No. 49/CE(A)/GHY/07 dated 11.09.2007 passed by the Commissioner, Customs Central Excise (Appeals), Guwahati as First Appellate Authority. First Appellate Authority under this OIA dt. 11.09.2007 upheld the Order-in-Original dated 30.03.2007, passed by the Adjudicating Authority, by passing following one paragraph order: I have gone through the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yers. Learned Advocate relied upon the following case laws to argue that in the case of FOR destination the place of removal is shifted to the customers place, as per amended Section 4 of the Central Excise Act, 1944, where sale is effected and transportation charges are includable in the assessable value:- (i) Ultimate Flexipack Ltd.-vs.-Commr. Of Central Excise, J K.[2014(304) E.L.T. 446(Tri.-Del.). (ii) Hard Castle Petrofer Pvt. Ltd.-vs.-Commr.of C.Ex., Jammu(J K).[2014(304) E.L.T.576(Tri.-Del.). (iii) Krishi Rasayan Exports Pvt. Ltd.-vs.-Commr.of C.Ex., J K.[2015(326)E.L.T.375(Tri.-Del.). (iv) Uflex Ltd.-vs.-Commr. Of C.Ex. Cus., Jammu. (v) Commr. Of Customs and Central Excise, Nagpur-vs.- M/s. Ispat Industries Ltd.[2015-TIOL-238-SC-CX] 2.2. Learned Advocate also relied upon certain purchase orders to argue the price agreed upon is FOR destination and transportation charges are required to be included in the assessable value as per above relied upon case laws. 2.3. Learned Advocate also relied upon CBEC Circular No.6/59/2000-CX.1 dated 19.12.2000 and argued that freight is required to be excluded only if separately shown in the invoices. Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to their value, then, on each removal of the goods, such value shall- (a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale be the transaction value; (3) For the purpose of this section,- (c ) Place of Removal means - (i) a factory or any other place or 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; (iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory; from where such goods are removed. 4.1.1. Section 4(3) (C)(iii) of the Central Excise Act, 1944 was inserted with effect from 14.05.2003 by Section 136 of the Finance Act, 2003. The period involved in the present proceedings is 2003-2004 and 2004-2005 as per facts stated in the OIO dated 30.03.2007. 5. The moot point for determination in the present proceedings is as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as to where sales tax is paid. The onus is on the appellant to establish the point of sale with documentary evidences to stake claim for exemption and refund under Notification No.32/99-CE. Inspite of the specific directions from the bench appellant has not been able to bring on record that ownership of the goods, till their delivery at the doorsteps of the buyers, lies with them and that insurance of goods in transit is borne by the appellant. 7. In the case of Associated Strips Ltd.-vs.-Commr. C.Ex., New Delhi (Supra), CESTAT bench sitting at Delhi held as follows in paras 13,17, 19 and 26 : 13.The primary question that has to be considered is whether the facts of Escorts JCB and Prabhat Zarda are different from the appellants case as contended by the appellants or whether they are similar so that the dictum laid down therein would be directly applicable to the appellants case as contended by the Revenue. In Escorts JCB the departmental authorities proceeded to hold that the property in the goods sold did not pass to the buyer till it reached the premises of the buyer in view of the fact that insurance policies were taken out by the seller to cover the goods till it r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to find out when did the transfer of possession of the goods to the buyer occur or when did the property in the goods pass from the seller to the buyer. Is it at the factory gate as claimed by the appellant or is it at the place of the buyer as alleged by the Revenue In this connection it is necessary to refer to certain provisions of the Sale of Goods Act, 1930. Section 19 of the Sale of Goods Act provides that where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Intention of the parties are to be ascertained with reference to the terms of the contract, the conduct of the parties and the circumstances of the case. Unless a different intention appears; the rules contained in Sections 20 to 24 are provisions for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Section 23 provides that where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The case law of Aditya Birla Insulators Ltd.-vs.-Commr.of C.Ex.,Kolkata-IV[2008(226)E.L.T.377(Tri.-Kolkata)] relied upon by the Revenue is not applicable as the period involved in this case was 28.09.1996 to 30.09.2000 i.e. prior to Section -4(3)(c)(iii) insertion effective from 14.05.2002. However, case law of this bench Commr. C.Ex., Shillong vs.-Guwahati Carbon Ltd. (Supra) relied upon by the Revenue was after amendment where following observations and order was passed by the Kolkata Bench in paragraphs 7 and 8: 7. In view of the above, the argument of the learned Advocate for the Respondents for inclusion of the freight and insurance charges in the assessable value cannot be accepted. The reliance on the case of Jindal (India) Ltd. (cited supra) is also misplaced. The Tribunal in the case of Jindal (India) Ltd. merely holds that where transport charges are shown separately, the same cannot be included in the assessable value. Such a decision is not an authority to include transportation charge in the assessable value, where it is not shown separately. We are also of the view that the reliance placed by the learned Advocate for the Respondents on - (i) Yamaha Motors ..... X X X X Extracts X X X X X X X X Extracts X X X X
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