2011 (8) TMI 261 - AT - Central Excise

Demand - Assessable value - assessee had filed the price declaration of the goods to be sold at depots in the form of Annexure II declaring therein the sale value of the goods manufactured by it wherein the freight charges incurred on transportation of the said goods from the factory to depots were not included which were recovered later on from its customers on depot sale basis - the present appeals have been filed by the Revenue as an abundant caution so that the impugned order does not attain finality till the decision in review petition filed by the department - Decided in favor of the assessee

Summary

Issues:
- Appeal against Order-in-Appeal dated 30/12/2003 regarding excise duty on transportation charges for depot sales
- Contention on reliance of Supreme Court's decision in VIP Industries Ltd. case
- Appeal filed by Revenue as a precaution against pending review petition

Analysis:
The case involved an appeal by the Commissioner of Central Excise, Nagpur against the Order-in-Appeal dated 30/12/2003. The respondents were manufacturers of furniture and parts under specific chapters of the Central Excise Tariff Act, 1985. The issue revolved around the excise duty on transportation charges for goods sold at depots, where the freight charges were not initially included in the assessable value of the goods. The department sought to recover excise duty based on the average amount incurred from the factory gate to the depot, leading to show-cause notices and subsequent adjudication confirming the demands. However, the Commissioner of Central Excise (Appeals) set aside the Orders-in-Original, prompting the Revenue to appeal before the Tribunal.

The Revenue contended that the reliance on the Supreme Court's decision in the VIP Industries Ltd. case was crucial. The Commissioner of Central Excise, Nasik had referred this decision to the Central Board of Excise & Customs for a review petition before the Supreme Court, which was under consideration at the time. As a precautionary measure, the Revenue filed the present appeals to prevent the impugned order from becoming final, ensuring an appellate remedy if the review petition succeeded.

During the hearing, the respondent's representative argued that their case aligned with the Supreme Court's decision in the VIP Industries Ltd. case, which the Commissioner (Appeals) had considered in setting aside the lower authorities' orders. The Tribunal noted that the appeals were filed by the Revenue as a precaution until the review petition outcome. The review petition filed by the department was subsequently dismissed by the Supreme Court, making the Supreme Court's decision in the VIP Industries Ltd. case final. Consequently, the Tribunal upheld the impugned order, dismissing the Revenue's appeals based on the Commissioner (Appeals) rightly applying the Supreme Court's decision.

In conclusion, the Tribunal upheld the decision of the Commissioner (Appeals) and dismissed the Revenue's appeals, emphasizing the finality of the Supreme Court's decision in the VIP Industries Ltd. case regarding excise duty on transportation charges for depot sales.