TMI Blog2023 (6) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 6(6) of Cenvat Credit Rules, 2004 by way of substitution therefore, this amendment may be taken as retrospective also - in respect of supplies made to SEZ, payment of 10% in terms of Rule 6(3) of Cenvat Credit Rules, 2004 does not apply. Accordingly, demand on this ground is set aside. Demand of duty on refundable security deposit for die development charges - HELD THAT:- Out of the total receipt of die development charges a part of amount has been refunded or adjusted against the sale therefore, the adjudicating authority has not demanded the duty. However, while proceeding was going on, a specific amount of refundable security deposit were retained by the appellant which is reflected in their books of account. If the appellant has retained the amount of die development charges and not returned which will amount to recovery of the price of the die development, in such case the amortized cost of die development charges should be included in the assessable value of the final product i.e. Aluminium Product supplied by the appellant on payment of duty however, this aspect has not been examined by the adjudicating authority therefore, the issue of demand of duty on refundabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ium Profiles supplied to the customer. (iii) Whether the appellant is liable to pay excise duty on excess insurance charges collected from the customers of their final product. 02. Shri Mrugesh Pandya, learned counsel appearing on behalf of the appellant submits that the learned Commissioner (Appeals) rejected the appeal in respect of first issue on the ground that Notification No.50/2008-CE (N.T.) has only prospective effect and not retrospective effect. He further submits that the Order-in-Original rejecting the appeal on the ground that the excisable goods cleared to SEZ Developer cannot construe export under bond as per Clause (v) of Sub-Rule (6) of Rule 6 of Cenvat Credit Rules, 2004. He submits that it is not in dispute that the final product was cleared by the appellant to the SEZ Developer without payment of duty under bond. It is also not disputed that the said final product were consumed in SEZ. He submits that the issue that whether the appellant is liable to pay 10% on the value of clearance made to SEZ Developer under Rule 6(3) of Cenvat Credit Rules, 2004 is squarely covered by the circulars and various judgments of the tribunal and High Court which are cited be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise, Vapi- 2009 (245) E.L.T. 816 (Tri. Ahmd.). CCE, Vadodara Versus Amod Industries 2008 (229) E.L.T. 713 (Tri.-Ahmd.) Icomm Tele Ltd.- 2010 (251) E.L.T. 103 (Tri.-Bang.) Andra Sugars Ltd.- 2007 (212) E.L.T. 48 (Tri.-Bang.) Neha Powerlines Pvt. Ltd.- 2009 (245) E.L.T. 816 (Tri.-Ahmd.) Baroda Electric Meters Ltd.- 1997 (94) E.L.T. 13 (SC) ESCORTS JCB LTD. Vs. Commissioner of Central Excise, Delhi-II- 2002 (146) E.L.T. 31 (S.C.) 2.3 He further submits that the entire proceedings are expressly time barred. The issue involved in the appeals are issues of interpretation of law moreover, the issue in the present case is covered by the various above cited judgments. He submits that it has been the consistent view of the CESTAT that where the issues of interpretation of law is involved, the revenue cannot invoke larger period of limitation therefore, the demand for the extended period is not sustainable consequently, penalties are also not sustainable. 03. Shri Prabhat Rameshwaram, learned Additional Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. 04. We have carefully considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance charges collected from the customers, we find that when the assessee charge an average amount of insurance charges in the invoice, it may be less or excess as compared to the actual insurance charges borne by the assessee supplier of the goods. On this issue various courts have held that the excess insurance not being part of the price of the goods, the same should not be liable to duty. This issue has been considered by the Hon ble Supreme Court in the case of Baroda Electric Meters Ltd.- 1997 (94) E.L.T.13 (SC) wherein, the Hon ble Supreme Court taken the following view:- The Tribunal accepted the position that equalised freight was charged by the appellant from everyone, but proceeded to say that even though freight cannot be a part of the assessable value that wherever freight actually paid was less than the amount collected by way of freight and transportation charges the difference was appropriated by the appellant and, therefore, the same would be a part of the assessable value. In our opinion, the Tribunal proceeded on an incorrect premise. It was clearly held in Indian Oxygen Ltd. v. Collector of Central Excise - 1988 (36) E.L.T. 723 (S.C.) = 1988 (Supp.) SCC 658, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he insurance activity cannot be added to the assessable value, as the issue stand settled by the Hon ble Supreme Court in the above referred matters. It is not the Revenue s case that the assessable value adopted in other cases, where no insurance service was being provided, is depressed or incorrect. There is also no other evidence on record indicating that such recovery of more insurance amount was on account of the value of the cleared products. As such we fully agree with the learned advocate that the demand is unjustified. We accordingly, set aside the same as also penalty imposed upon the appellant and allow the appeal with consequential relief. 4 . As the appeal has been allowed on merits the appellants plea of the demand being barred by limitation is not being considered. In view of the above settled legal position, no duty is payable on the excess insurance charged by the appellant to the customer accordingly, the demand on this count is set aside. As regard the appeals of Director and Employee of the company, we find that the major demand has been dropped moreover, the issue involved is interpretation of law and it is not the case of clandestine removal of go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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