TMI Blog2023 (8) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... f ESCORTS JCB LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-II [ 2002 (10) TMI 96 - SUPREME COURT ] and COMMISSIONER OF CENTRAL EXCISE, NOIDA VERSUS M/S. ACCURATE METERS LTD. [ 2009 (3) TMI 1 - SUPREME COURT] to hold that the insurance and transportation charges cannot be included in the assessable value even though the goods were transported by the assessee from factory gate to the place of State Electricity Board as per the contract. As the issue has been clarified by the subsequent Circulars of CBEC, therefore, the decision of this Tribunal in the case of Guwahati Carbon Ltd. cannot be relied upon in the changing circumstances. Hence, relying on the decision of this Tribunal in the case of M/S. RNB CARBIDES FERRO ALLOYS PRIVATE LIMITED AND OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE, SHILLONG [ 2021 (9) TMI 29 - CESTAT KOLKATA] and CBEC Circular No.1065/4/2018-CX dated 08.06.2018 it is held that the appellant has correctly assessed their goods and paid duty thereon in cash and rightly taken the refund thereof. There are no merit in the contention of the revenue that appellant has taken erroneous refund. Therefore, the impugned order is set aside - appeal allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elling goods to their buyers on FOR basis and freight charges are inclusive in the agreed price with the buyers, in that circumstances, the appellant has correctly valued the goods and paid duty thereon and whatever duty they have paid in cash have sought refund thereof. In that circumstances the impugned order is to be set aside. He also relied on the decision of this Tribunal in the case of RNB Carbides Ferro Alloys Pvt.Ltd. v. Commr. of C.Ex., Shillong [2021 (378) ELT 474 (Tri.- Kolkata)]. 4. On the other hand, the Ld.AR for the department opposed the contention of the Ld.Counsel and submits that in the case of CCE, Shillong v. Guwahati Carbon Ltd. [2009 (243) ELT 307 (Tri.-Kolkata)], this Tribunal has held that the price of transportation beyond the place of factory cannot be included in the assessable value of the goods in question. Therefore the appeal is to be dismissed. 5. Heard the parties, considered the submissions. 6. The facts are not in dispute that the appellant is selling goods to their buyers on FOR basis and cost of freight is not shown separately in the invoice which means the selling price is inclusive of freight charges. Both sides are relying on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptable condition at their premises and, in fact, bought by them after inspection. The invoices issued by the assessee incorporated details of the relevant purchase orders issued by the buyers and as the agreed upon price was as per FOR destination, there was no reason to charge any freight component separately. 13. Sale has been defined under Section 2(h) of the said Act as follows : sale and purchase , with their grammatical variations and cognate expressions, mean any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consideration; Thus, under the Act sale takes place only upon transfer of the possession of the goods by the manufacturer to the buyer, which occurred in the present cases at the buyers premises. 14. The parties intended that the sale of goods would take place at the premises of the buyers and that such premises would be considered to the Point of Sale, where the title and property in the goods were actually transferred. 15. We are of the view that the invocation of Rule 5 of the Valuation Rules, 2000 by the Revenue was misplaced. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the backdrop of similar facts and circumstances. The issue involved was whether the assessee was entitled to include freight charges upto the buyer s premises and claim refund in terms of the very notification in question i.e. Notification No. 32/99, dated 8-7- 1999. After examining the contract in light of the principles enunciated for determination of place of removal vis- -vis point of sale and discussing the aforementioned decisions of Roofit Industries and Ispat Industries Ltd., supra, this Tribunal had held that the property in the goods was intended to pass at the buyer s premises and, therefore, the assessee therein was not required to deduct the cost of transportation for Central Excise valuation purposes. 20. The decision in the case of Montage Enterprises (supra), cited by the Revenue, is distinguishable and its ratio is inapplicable to the situation at hand. To begin with, the said decision related to the Notification No. 56/2002-C.E., dated 14-11-2002 and the appellant therein had not established that the buyer s premises was the point of sale. Moreover, it was not brought to the notice of this Tribunal that the decision of Ispat Industries (supra) related to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions issued by the Board, the same cannot be termed as erroneous refund . In this regard, it would be worthwhile to take support from the recent decision of the Hon ble Gauhati High Court in the case of Topcem India v. UOI - 2021 (376) E.L.T. 573. In that case also, refund was sanctioned of the cess amount along with the basic excise duty in terms of the exemption notifications issued in the north-eastern States. The said notifications provided for exemption by way of refund of the duty paid through account current (PLA). By a subsequent decision of the Supreme Court in Unicorn Industries, it was held that the previous decisions of the Supreme Court in S.R.D. Nutrients case which upheld exemption of the cess amount was held to be per incurium. As a result thereof, the Department proceeded to recover the cess amount refund of which was already sanctioned by terming the said refund to be erroneous . The Gauhati High Court clarified the position that refund already sanctioned by taking the support of the legal precedents holding the field then cannot be termed as erroneous merely because of the change in legal position subsequently. The Court noted as below :- Erroneous Refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the plea on limitation. 7. Further we take note of the fact that CBEC has issued a Circular No.1065/4/2018-CX dated 08.06.2018, which clarifies the position, which is as under:- 4. Exceptions : (i) The principle referred to in para 3 above would apply to all situations except where the contract for sale is FOR contract in the circumstances identical to the judgment in the case of CCE, Mumbai- III v. Emco Ltd. - 2015 (322) E.L.T. 394 (S.C.) and CCE v. M/s. Roofit Industries Ltd. 2015 (319) E.L.T. 221 (S.C.). To summarise, in the case of FOR destination sale such as M/s. Emco Ltd. and M/s. Roofit Industries where the ownership, risk in transit, remained with the seller till goods are accepted by buyer on delivery and till such time of delivery, seller alone remained the owner of goods retaining right of disposal, benefit has been extended by the Apex Court on the basis of facts of the cases. 8. As the issue has been clarified by the subsequent Circulars of CBEC, therefore, the decision of this Tribunal in the case of Guwahati Carbon Ltd. (supra) cannot be relied upon in the changing circumstances. Hence, relying on the decision of this Tribunal in the case of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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