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TMI Blog2019 (11) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... es where there was no corresponding payment to any Insurance Company. In the appeal memorandum it has been argued that the case of the appellant is covered by the decision of Hon'ble Apex Court in the case of Central Excise, Noida v/s. Accurate Meters Limited, reported at 2009 (235) ELT, 581. 4. Learned AR relied on various case laws. 5. We find that the decision of the Hon'ble Apex Court in case of Accurate Meters is specifically covers the issue at hand. The Hon'ble Apex Court in the said case has observed as follow. "6.Indisputably, goods were supplied by the assessee to the State Electricity Boards in terms of the stipulations contained in the advertisements issued by them. Two separate contracts have been entered into by and between the respondent and State Electricity Boards therefor; one in respect of the supply of the electric meters and another for transportation and transit insurance thereof. 7.Section 3 of the Act provides for levy and collection of duty in the manner as prescribed therein. Section 4 provides for valuation of excisable goods for purposes of charging of duty of excise. Section 4(1 )(a) of the Act reads as under : "4. Valuation of excisable g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verage charges as per meter are shown." Purchase orders provided for ex-factory prices as Firm on F.O.R., destinations which are inclusive of excise duty, sales tax, packing, forwarding, freight and insurance charges. In the price and delivery schedule, average price was to be paid per meter as shown separately including freight charges. It was opined that the freight amount being collected was not on actual basis. The Authority in original also noticed the said fact in his order dated 5-11-2003, stating : "At the outset, I observe that the issue raised in the S.C.N. is whether the element of freight and insurance is includible in the value of the goods after its clearance from payment of excise duty. The issue pertains to the sale of goods after its clearance from the factory gate. As per the Central Excise Act, the valuation of the goods is governed by the provisions of Section 4 of the Central Excise Act, 1944, wherein it has been laid down that the value of the goods shall be price at which the goods are not sold by the assessee, for delivery, at the time and place of removal. In case the goods are not sold at the time and place of removal, the value of such goods is to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch goods and of the excisable goods under assessment, as may appear reasonable. RULE 5.Where any excisable goods are sold in the circumstances specified in clause (a) of sub-section (1) of section 4 of the Act except the circumstances in which the excisable goods are sold for delivery at a place other than the place of removal, then the value of such excisable goods shall be deemed to be the transaction value, ex cluding the cost of transportation from the place of removal upto the place of delivery of such excisable goods." Rule 5 of the Rules would apply in a case where clause (a) of sub-section (1) of Section 4 of the Act has no application. 12.We have noticed hereinbefore that there were two separate contracts; one for sale of Electricity Meters which was governed by the provisions of the Sale of Goods Act, and the other governing transportation of the goods. The charges for transportation of the goods were not on actual basis. Respondent was bound to transport the goods from the factory gate to the place of the State Electricity Boards at the rates specified in the tender. Prior thereto, the State Electricity Board Authorities were to make inspection of the goods. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urance would in no way lead to an inference that the ownership in the goods was retained by the assessee during the period of the transit until the delivery of the goods at the place of the buyer. The terms and conditions of the sale are clear that the sale is Ex-works at Ballabgarh, Haryana. The payment is to be made before despatch of the goods from the factory premises. The machinery, handed over to the carrier/transporter is as good as delivery to the buyer in terms of Section 39 of the Sale of Goods Act apart from terms and conditions of sale. Section 39 of the Sale of Goods Act reads as under : 39. Delivery to carrier or wharfinger : (1) Where, in pursuance of a contract of sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, or delivery of the goods to wharfinger for sale custody, is prima facie deemed to be a delivery of the goods to the buyer. (2) Unless otherwise authorized by the buyer, the seller shall make such contract with the carrier or wharfinger on behalf of the buyer as may be reasonable having regard to the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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