2010 (8) TMI 790 - AT - Central Excise

Valuation - freight - the freight collected from the dealer turned out to be more than the actual cost of transportation incurred by the assessee that is the amount paid to the transporter - includibility - claim of appellant is that what was collected by them from the dealers in excess of the actual cost of transportation was only a profit on transportation and hence the same was not liable to be included in the assessable value of the goods u/s 4 of the Act - Held that - the place of delivery is the factory gate and even according to the Revenue the cost of transportation from the factory gate to the buyers premises is liable to be excluded from the assessable value of the goods. The rule does not provide for inclusion of any excess freight in the assessable value in the circumstances specified under Section 4(1)(a) of the Act. We do not think that the proposal to include the excess freight in the assessable value is corollary to exclusion of the actual cost of transportation from the assessable value. The excess freight collected from the dealers was only a profit on transportation and not an additional consideration within the meaning of this expression used in Rule 6 nor an additional amount within the meaning of the definition of transaction value under Section 4(3)(d) of the Act Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Inclusion of excess freight collected in the assessable value of goods.
2. Applicability of Supreme Court's decision in Baroda Electric Meters case post-1-7-2000.
3. Interpretation of "transaction value" under Section 4(3)(d) of the Central Excise Act.
4. Relevance of Tribunal's prior decisions in similar cases.
5. Consideration of excess freight as "additional consideration" under Rule 6 of the Central Excise Valuation Rules, 2000.

Issue-wise Detailed Analysis:

1. Inclusion of Excess Freight Collected in the Assessable Value of Goods:
The appellant, a manufacturer of motor vehicles, sold cars ex-factory with the buyers liable to take delivery at the factory gate. However, the appellant transported the vehicles to the dealers' premises and recovered the transportation cost from the buyers. The department issued show-cause notices demanding differential duty on the excess freight collected over the actual transportation cost, alleging contravention of Section 4(1)(a) and Section 4(1)(b) of the Central Excise Act, 1944, read with Rule 5 of the Central Excise Valuation Rules, 2000. The original authority confirmed the demand, and the Commissioner (Appeals) upheld this decision. The appellant contended that the excess amount collected was a profit on transportation and not includable in the assessable value.

2. Applicability of Supreme Court's Decision in Baroda Electric Meters Case Post-1-7-2000:
The appellant argued that the Supreme Court's decision in Baroda Electric Meters Ltd. v. Collector of Central Excise, which held that excess freight collected is not includable in the assessable value, applied to their case. The Revenue countered that this decision was relevant only for the period before 1-7-2000, when the concept of "transaction value" replaced "normal value." The Tribunal, however, found that the nature of the excess freight as a profit on transportation, as determined by the Supreme Court, remained applicable regardless of the change in valuation concepts.

3. Interpretation of "Transaction Value" under Section 4(3)(d) of the Central Excise Act:
The Revenue argued that the excess freight collected should be included in the "transaction value" as it is an additional consideration under Section 4(3)(d). The Tribunal examined the definition, which includes any amount the buyer is liable to pay to the assessee by reason of, or in connection with, the sale. The Tribunal concluded that the excess freight was not an amount the buyer was liable to pay in connection with the sale, but rather in connection with transportation, thus not includable in the transaction value.

4. Relevance of Tribunal's Prior Decisions in Similar Cases:
The appellant cited Tribunal decisions in Kothari Sugar & Chemicals and TCP Ltd., which followed the Baroda Electric Meters case and excluded excess freight from the assessable value. The Revenue argued these decisions were sub silentio for the period post-1-7-2000. The Tribunal disagreed, noting that the decisions recognized the excess amounts as profits on transportation, indicating consideration of the transaction value concept.

5. Consideration of Excess Freight as "Additional Consideration" under Rule 6 of the Central Excise Valuation Rules, 2000:
The Revenue contended that the excess freight collected was an additional consideration under Rule 6. The Tribunal found that the excess freight was not an additional consideration flowing from the buyer to the seller but a profit on transportation, as established in the Baroda Electric Meters case. Thus, it was not includable in the assessable value.

Conclusion:
The Tribunal set aside the impugned order, holding that the excess freight collected by the appellant was a profit on transportation and not includable in the assessable value of the goods. The appeal was allowed with consequential relief, following the precedent set by the Supreme Court in Baroda Electric Meters case.

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