2013 (12) TMI 23 - AT - Central Excise

Refund claim - Duty under protest paid - Cost of third party test Transaction value - Whether the cost of third party test got done at the instance of customer is to be included in the value or not - Held that - As per Section 4(3)(d) transaction value means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods - the cost of ESS test whether it is paid to a third party or paid to the seller himself is includable. Extended period of limitation - The extended period could have been invoked in respect of the appellant - Once the duty liability is confirmed as payable, if extended period is invoked even penalty becomes payable - In this case only the refund claim has been rejected and the appeal is only against the rejection of refund claim - the testing conducted is a condition of sale and therefore, the cost of such testing is includable in the assessable value thus the refund claim has been rightly rejected Decided against Assessee.

Summary

Issues:
- Inclusion of third party test cost in assessable value for duty liability determination.
- Applicability of Section 4 of the Central Excise Act, 1944.
- Interpretation of purchase orders and conditions of sale.
- Invocation of extended period for duty demand.
- Refund claim admissibility.

Analysis:

1. Inclusion of Third Party Test Cost: The main issue in this case revolves around whether the cost of third party tests, conducted at the instance of the customer, should be included in the assessable value for determining duty liability. The appellant argued that such costs should not be included, citing relevant case laws. However, the respondent contended that any payment made by the buyer to the seller as a condition of sale is part of the transaction value, as per Section 4 of the Central Excise Act, 1944.

2. Applicability of Section 4: Section 4(1) of the Central Excise Act, 1944, clarifies that the price actually paid for the goods sold and any additional consideration from the buyer to the seller in connection with the sale of goods should be included in the transaction value. The Tribunal analyzed sample purchase orders, which clearly indicated that the ESS tests were conducted as a condition of sale, with the buyer agreeing to bear the cost. Therefore, the cost of such tests was deemed includable in the assessable value.

3. Interpretation of Purchase Orders: The purchase orders examined by the Tribunal revealed that both the purchaser and seller had agreed to the necessity of ESS tests, with the buyer agreeing to pay for the tests. It was evident that the tests were integral to the sale of goods, as the buyer required the ESS certificate for acceptance. This interpretation aligned with the provisions of Section 4(3)(d) regarding transaction value.

4. Invocation of Extended Period: The appellant raised concerns regarding the demand being beyond the normal period of limitation, arguing that the refund should have been granted. However, the Tribunal noted that the extended period could have been invoked in this case, and the rejection of the refund claim did not entail penalty imposition. The Tribunal emphasized that the cost of testing being a condition of sale justified the rejection of the refund claim.

5. Refund Claim Admissibility: The appellant's contention that the demand was not sustainable without invoking suppression was countered by the Tribunal, which held that the testing conducted in this case was indeed a condition of sale. As a result, the cost of testing was deemed includable in the assessable value, leading to the rejection of the refund claim.

In conclusion, the Tribunal rejected the appeal based on the interpretation of Section 4 of the Central Excise Act, 1944, and the specific conditions outlined in the purchase orders, which established the cost of third party tests as part of the transaction value for duty liability determination.