TMI Blog2021 (8) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... Also, the representative contract produced by them in respect of Rajasthan Rajya Vidyut Prasaran Nigam Limited in para 5 thereof contains details of various tests to be conducted by the buyer. The tests include Stage Inspection, Routine Tests, Type Tests, Test for Nitrogen Inspection, Fire Prevention and Extinguishing System. The dispatch of goods is also subject to approval of buyer after testing. The dispatch instruction prescribes in para 7 of the contract prescribe the manner in which the dispatch clearance will be granted by the buyer. Following the decision in case of COMMISSIONER OF CENTRAL EXCISE, NOIDA VERSUS M/S. ACCURATE METERS LTD. [ 2009 (3) TMI 1 - SUPREME COURT] and ASHOK TRANSFORMERS P LTD. VERSUS C.C.E. S.T. -SURAT-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts. He particularly relied on the decision of Hon ble Apex Court of Accurate Meters Limited 2009 (235) ELT 581. He also relied on the decision of Tribunal in the case of Ashok Transformers Private Limited reported at 2019 (11) TMI 831, wherein under similar circumstances relief was granted. 3. Learned Authorized Representative relies on the impugned order. 4. We have considered the rival submissions. We find that the dispute essentially relates to includability in assessable value of freight collected in excess to the actual amount spent. We noticed that in the instant case, it is a fact that the price of transportation contracted is not always in excess of the actual amount spent on transportation. Sometimes it is less and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate from the Bureau of India Standards Cylinders are to be marked with the name of the oil companies before they are handed over to the transporter for the purpose of transmission to the buyer. In the light of the provisions contained in Section 23, it has to be taken that the goods are unconditionally appropriated to the contract when the above procedure was followed and goods handed over to the carrier thus passing on the property in the goods to the buyer. 19. We may also refer to the provision contained under Section 39 of the Sale of goods Act which refers to the legal effect of delivery of the goods to a carrier by the seller. It is provided that where, in pursuance of a contract of sale, the seller is authorized or requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 the goods and the other circumstances of the case. If the seller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tests to be conducted by the buyer. The tests include Stage Inspection, Routine Tests, Type Tests, Test for Nitrogen Inspection, Fire Prevention and Extinguishing System. The dispatch of goods is also subject to approval of buyer after testing. The dispatch instruction prescribes in para 7 of the contract prescribe the manner in which the dispatch clearance will be granted by the buyer. We find that the facts are similar to the case of Accurate Meters decided by Hon ble Supreme Court. In similar case relief was also granted in the case of Ashok Transformers Pvt. Ltd. (supra). Consequently, relying on the aforesaid Hon ble Apex Court decision, we set aside the impugned order and allow the appeals. ( Pronounced in the open court on 11.08.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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