TMI Blog2022 (1) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... se duty paid by the appellant while arriving at actual value addition - regarding deduction of outward freight it was held that It is settled law that in the context of Section 4(3)(C) when the goods are on FOR destination sales and the freight is paid by the seller and the goods are to be insured by the seller, then the seller cannot claim deduction of freight and insurance from sale price - also, in the balance sheet for 2011-2012, the freight outward is shown under selling and distribution expenses. Hence, the freight outward is includible in the sale value. Appeal allowed - decided in favor of appellant. - E/60492/2017, E/60001 and 60218/2018 - FINAL ORDER NO. 60006-60008/2022 - Dated:- 6-1-2022 - MR. ASHOK JINDAL, MEMBER (JUD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se by this Tribunal vide Final Order No. 62030/2017 on 31.10.2017 has dealt the issue and held that the appellant is entitled for refund claim, therefore, the impugned orders are to be set aside. 4. On the other hand, Ld. AR filed written submission, the same are taken on record. A query was made to the Ld. AR whether any appeal has been filed against the order of this Tribunal dated 31.10.2017 or not? He was unable to apprehensive whether the said order has been accepted by the Revenue or not? 5. Heard the parties. 6. In appellant s own case for earlier period, this Tribunal after considering the issue in detail and observed as under: 8. There are two issues arising in this appeal, which are enumerated in the opening paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... calculated on the basis of the financial records of the preceding financial year, taking into account the following, namely :- (i) sale value of the said goods excluding excise duty, Value Added Tax and other indirect taxes, if any, paid on the goods; (ii) Less : Cost of raw materials and packing material consumed in the said goods; (iii) Less : Cost of fuel consumed if eligible for input credit under CENVAT Credit Rules, 2004; (iv) Plus : Value of said goods available as inventory in the unit but not cleared, at the end of the financial year; (v) Less : Value of said goods available as inventory in the unit but not cleared, at the end of the financial year preceding that under consideration. Special rate sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. In para 7(1) the wording and context make it evident that the total duty paid means the total excise duty paid through PLA i.e. other than the amount paid through Cenvat Credit. 11. We find force in the contention of the Ld. Advocate that Notification no.1/2010-CE provides for partial exemption. It is also evident from the Board s Circular No. 682/73/2002-CX, dated 19.12.2002, which was issued when Notification No.56/2002-CE dated 14.11.2002, for area based notification in J K was initially issued. Para 3 of the said Circular is relevant in this regard and is reproduced below: 3.In this context, it may be pointed out that the Refund envisaged in the notifications is not on account of any excess payment of excise duty by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument taken by the appellant, that these provisions are made as an abundant caution or are clarificatory and has no relevance, is thus required to be rejected. On the contrary the opening phrase of this Rule 12 containing the words Notwithstanding anything contained in these Rules has to be interpreted to mean that in spite of the provisions contained in Rule 3 Rule 6 of the Cenvat Credit Rules, credit of whole of duty paid through PLA will be admissible even if the same stands fully exempted by exemption notifications specified in these Rules. As Notification No. 27/2001-C.E., dated 11-5-2001 is not mentioned, in these Rules, it is held that though area-based exemption is admissible to NCCD but its Cenvat credit has not been made av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete when seller of the goods transferred to the buyer the property in the goods for price. He has concluded that point of sale is the factory gate as the appellant is not stock transferring the goods to the customer s premises. Hence, freight and insurance is not be included in the sale value. On the basis of Section 4 of Central Excise Act, the Commissioner has held that the duty of excise is charged on transaction price at the place of removal and such place of removal is place of sale. Hence, outward freight will not form part of the sale value. We find that in this case the sales made by the appellants are on FOR destination basis. The invoices placed on record show that the freight on these goods has been paid by the appellant. Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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