2009 (9) TMI 845 - AT - Central Excise

Valuation - dealer s commission and delivery charges - includibility - Held that - Rule 7 provides that where the goods are not sold at the time and place of removal but are transferred to a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold, the value shall be the normal transaction value of such goods sold from such other place - In the present case, Motor Spirit and HSD oil are also sold to customers at the time and place of removal. In these circumstances, provisions of Rule 7 are not attracted - In the present case, the assessees determined the value as per Rule 4 of the Valuation Rules which is therefore required to be accepted - appeal allowed - decided in favor of appellant.

Summary

Issues:
Demand of differential duty on Motor Spirit and High-Speed Diesel oil; Inclusion of dealer's commission and delivery charges in assessable value; Imposition of penalties under various sections and rules.

Analysis:
The judgment pertains to a demand of Rs. 29,06,010/- as differential duty on Motor Spirit and High-Speed Diesel oil, along with penalties imposed under different sections and rules. The impugned order confirmed the demand under the proviso to Section 11A(1) of the Central Excise Act, 1944, stating that dealer's commission and delivery charges must be included in the assessable value as per Rule 7 of Valuation Rules, 2000. Additionally, penalties equal to duty under Section 11AC of the Act and Rs. 50,000/- under Rule 173Q of the 1944 Rules and 25 of the 2002 Rules were imposed.

The Tribunal considered Rule 7, which applies when goods are not sold at the time and place of removal but are transferred to another location for sale. However, in this case, Motor Spirit and HSD oil were sold to customers at the time and place of removal. Citing the decision in Ispat Industries Ltd. v. CCE, Raigad, the Tribunal held that Rule 7 is not applicable. The decision in Ispat Industries Ltd. clarified that Rule 8 of Central Excise Valuation Rules, 2000, which deals with captive consumption, is not relevant when part of the production is transferred to another plant and the rest is sold to independent buyers. Therefore, the assessable value should be determined under Rule 4, as done by the assessee in this case.

In line with the above reasoning and following the precedent set by the Larger Bench decision, the Tribunal set aside the impugned order and allowed the appeal. The operative part of the order was pronounced in open Court on 14-9-09. This judgment provides clarity on the valuation rules applicable in situations where goods are sold at the time and place of removal, impacting the determination of assessable value and associated duties and penalties.