9911796707
TMI Blog2023 (4) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... ITES were specifically insisted upon by the customers and ultimately the charges paid to RITES were being reimbursed by the buyers. The Department issued a Show Cause Notice on the ground that the charges paid to RITES and finally reimbursed to the Appellant by the buyer is includable in the Assessable Value on which Excise Duty is paid. The Appellants were also clearing the metal scrap being generated in the course of manufacture of their finished goods. Show Cause Notice was issued on the ground since they are able to sell the metal scrap, the same would be liable for Excise Duty Payment. After due process, the Lower Authorities confirmed the demands. Being agitated by the impugned Order-in-Original the Appellant is before the Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of metal scrap he reiterates the findings of the Lower Authorities and submits that the demands have been correctly confirmed against the Appellant. 5. Heard both sides and perused the documents. 6. On going through the case law of HDCL cited by the Learned Counsel, it is seen that in that case the amount was being paid by Railways to Rail India directly, whereas in the present case, the amount was being paid to RITES by the Appellant which was subsequently being reimbursed by the buyers. Therefore the facts are not similar or identical. So far as the Supreme Court's decision in the case of TVS Motors Company Ltd., is concerned, it is seen that the issue before the Hon'ble Supreme Court was on account of pre delivery inspection and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable in determining the transaction value under the new provisions of Section 4 of the Act red with Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. In fact, the Order-in-Original in M/s TVS Motors Company Ltd. Or in other cases itself proceeds on that basis. [emphasis supplied] From a careful reading of above extract, it gets clarified that on account of certain charges being paid without which the sale could not have taken place, the same is required to be included in the Assessable Value. In the present case also since it was insisted on by the buyer, the sale could not have taken place without the mandatory inspection by the RITES. Hence the case law cited of TVS Motors does not come to the rescue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said judgment are quoted below : "4. It is settled law that charges paid for inspection or testing by a third party at the option of the buyer cannot form part of the assessable value. This is because such inspection or testing inspections has nothing to do with the marketability. In cases where the buyer does not opt for inspection by a testing agency, the same goods have become marketable without it. The position would be different in a case where every buyer insists upon such inspection by a testing agency. In that case, the goods cannot be sold till that inspection takes place. In no case can the appellant sell the goods without testing by RITES. The inserts manufactured by the appellant cannot be sold unless they are tested and app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. We find that this case law referred by Learned AR squarely supports the Department's view. Accordingly, the appeal on account of the confirmed demand of Rs. 1,15,419/- on account of the reimbursement to RITES is rejected. 8. In respect of the metal scrap sold by them, it has been held in catena of decisions that marketability alone is not sufficient to levy the Excise Duty but proper manufacture in terms of Section 2(f) of the Central Excise Act, 1944 should have taken place. Further, it has been held that scrap is a necessary byproduct when the manufacture takes place and accordingly it has been held that Excise duty cannot be demanded on sale of such scrap. Even in this case, going by the facts presented before us, it is seen that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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