2008 (12) TMI 47 - AT - Central Excise

Assessable value - Includibility of fright incurred for carrying the empty container back - invoice clearly shows the price at which the impugned goods are sold at the factory gate and the freight has been indicated separately - impugned goods namely Butadiene is notified as explosive and hence it goes in special tankers held that return freight is not includible - Circular no. 643/34/2002-CX followed blindly by adjudicating commissioner without applying mind while confirming demand

Summary

In the appellate tribunal CESTAT KOLKATA case citation 2008 (12) TMI 47, the members Dr. Chittaranjan Satapathy and Shri D.N. Panda heard the appeal of an Appellant represented by Shri Harakamal Chakraborty against a substantial duty and penalty imposed by the Adjudicating Commissioner. The Appellant argued that the impugned goods, Butadiene, required special tankers for transportation due to their explosive nature, resulting in extra expenses for returning empty tankers. The Adjudicating Commissioner based his decision on a Board's Circular, which the Appellant contested, arguing that the assessable value was determinable under Section 4 of the Act and that the freight for returning empty containers should not be included.

The tribunal, after considering the case facts, submissions, and the Board's Circular, concluded that the Adjudicating Commissioner failed to apply his independent judgment, instead of blindly following the Circular. They found it illogical to include the return freight in the assessable value while excluding the outward freight. The tribunal ruled that the transaction value at the factory gate, exclusive of freight, should be taken as the assessable value under Section 4(l)(a) of the Central Excise Act, 1944. They cited a Chennai Bench Tribunal decision supporting their view and referenced a previous case to reinforce their judgment.

Furthermore, the tribunal referred to a previous case involving Aditya Birla Insulators Ltd., emphasizing that any interpretation requiring the inclusion of transportation and insurance charges in the assessable value would be unconstitutional. Consequently, the tribunal set aside the Adjudicating Commissioner's order and allowed the appeal, pronouncing the operative part of the order on 16-12-08. The judgment highlights the importance of applying independent judgment in quasi-judicial decisions and ensuring compliance with legal provisions in determining assessable values.