TMI Blog2023 (3) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the case of the department cannot be sustained. This issue is no longer res- integra as the same was decided in the appellant own case reported at M/S. VEENA INDUSTRIES LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE S.T., VAPI [ 2016 (1) TMI 161 - CESTAT AHMEDABAD] wherein this Tribunal has held that It is an independent activity of service therefore the cost of diesel which was recovered by the appellant from the customer as reimbursement for the testing of the DG set is not includable in the transaction value towards the sale of DG set. The activity of filling of Diesel in the DG Set at the site Company is at most can be considered as pre-delivery inspection charges. The impugned order is set aside - Appeal is allowed. - Excise Appeal No. 12250 of 2013 - A/10394/2022 - Dated:- 3-3-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri S.Narayanan, Advocate for the Appellant Shri Rajesh K Agarwal, Superintendent (AR) for the Respondent ORDER The brief facts of the case are that the appellant are manufacturer of DG sets which are sold and installed at the site of the customers through their dealers (sub contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 (37) STR 161 (All.) Maruti Suzuki India Ltd . vs. CCE, Delhi- III- 2010 (257) ELT 226 (Tri.- LB) Union of India vs. Rajasthan Spinning Weaving Mills 2009 (238) ELT 3 (SC) 3. Shri Rajesh K Agarwal, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that the appellant have 2 separate activities one is manufacture and sale of DG sets on which excise duty is paid on transaction value. The other activity is Installation Commissioning and Repair Maintenance which is provided through their sub contractor. There is separate contract for such services. In this fact, the activity of manufacture is completed when the DG set is sold by the appellant from their factory on transaction value. The other activities such as supply of spares for Installation Commissioning and Repair Maintenance of DG sets is all together different activity which cannot be clubbed with the assessable value of manufactured DG set sold by the appellant. It is also observed that in the show cause notice the department failed to even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the services were provided free by the dealer on behalf of the assessee and the same was during the warranty period . The clarification given, keeping in mind the aforesaid two features, makes all the difference inasmuch in these cases, we find that the services which are provided by the dealers are on their behalf and not on behalf of the assessees. The facts disclosed that the amount which was reimbursed by the assessee to their dealers pertaining to free service was being claimed as abatement in relation to the normal transaction value. It was one of the contention of these assessees that free service charges is a post sale activities and all post sale activities continued to be excludable in determining transaction value. 17 . On the other hand, we would like to refer to Circular dated 12- 5-2000 which was issued contemporaneously with the amendment in Section 4. It expressly states that amount should be recovered from the buyer by the assessee-manufacturer and makes the following reading in this behalf : 2.2 Definition of transaction value has also been modified to make it more transparent. Any amount paid by the buyer himself or on his behalf to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue. In other words, if, for example, an assessee recovers advertising charges or publicity charges from his buyers, either at the time of sale of goods or even subsequently, the assessee cannot claim that such charges are not includable in the transaction value. The law recognizes such payment to be part of the transaction value that is assessable value for those particular transactions. 19 . The sequitur of the aforesaid discussion would be to hold that PDI charges and free ASS charges would not be included in the assessable value under Section 4 of the Act for the purposes of paying excise duty. The view taken by the Tribunal in favour of assessees in this behalf is correct in law and all the appeals of the Department, i.e. C.A. Nos. 5155-5156/2007, 1763-1764/2009, 2204/2013, 2205/2013, 957-959/2014, 7854-7865/2014 and 7444/2008 are dismissed. On the other hand, Larger Bench view in Maruti Suzuki does not lay down the law correctly and is, therefore, overruled and the appeals filed by the assessees, i.e. C.A. Nos. 7007/2011, 7550/2011 and 3768-3769/2011 are allowed. This Tribunal s Division bench dealing with the identical facts though in the matter of different ..... X X X X Extracts X X X X X X X X Extracts X X X X
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