2017 (7) TMI 1034 - AT - Central Excise

Valuation - includibility - insurance charges(part of cost of transportation) - The Appellant claims that it is not includible in the value being post removal expenses viz. transportation, whereas, revenue claims it as breakage allowance/compensation, hence, part of the value of the goods - whether the amount equal to 7% of the value of the goods, collected as insurance charge under the head Cost of Transportation from the dealers/buyers is includible in the assessable value and chargeable to duty? - Held that - A simple reading of the General terms of sale reveals that the appellant though claimed that all of their sales are on ex-factory basis, but there are two category of buyers as per the said sales agreement; namely, buyers who take delivery of the goods at the factory gate and the second category of buyers who opt for delivery at their place which should be undertaken by the appellants - in the present case, the appellants on receiving extra amount @7% of the total value undertook to deliver the goods breakage free, and compensate the buyer for breakages by issuing credit notes, therefore, such sale ought to be considered not a sale on ex-factory basis but on FOR basis even though the Cost Transportation is not included in the price but shown separately in the invoice. Besides, the condition stipulated in clause (3) General Terms of Sale looses its significance of the delivery of possession at the factory gate, when the Appellant compensated the buyers for loss/breakages during transit to later premises by issuing credit notes. In our opinion, the issue is squarely covered by the decision of the Hon ble Supreme Court in the case of Surya Roshni Ltd. (2000 (9) TMI 71 - SUPREME COURT OF INDIA . - Decided against the assessee. Extended period of limitation - Whether the demand issued for the period from 01.02.1999 to 30.9.2004 is barred by limitation as the demand notice was issued on 26.2.2004? - Held that - Once the facts are within the knowledge of the Department, being always in dispute, hence the allegation that they had suppressed the facts from the knowledge of the Department, cannot be acceptable. On the issue relating to the differential duty on the quantum of discount not passed to the customers, the ld. Advocate for the appellants claimed that during the said period, though they have claimed a total discount of ₹ 21,60,72,896/- but in fact they have passed more discount to their buyers amounting to ₹ 23,23,77,024/-hence, duty demanded on this count is unsustainable in law - the matter is remanded to the adjudicating authority for determination of the said issue. Penalty - Section 11AC of CEA, 1944 - Held that - since the issue relates to interpretation of valuation provision and duty has been confirmed for the normal period, in our view, imposition of penalty equal to the duty under Section 11AC of CEA, 1944 is unwarranted and unjustified. Appeal allowed in part and part matter on remand.

Summary

Issues Involved:
1. Inclusion of 7% transit insurance charges in the assessable value.
2. Eligibility and quantum of discounts.
3. Invocation of extended period of limitation.
4. Imposition of penalty under Section 11AC of the Central Excise Act, 1944.

Issue-wise Detailed Analysis:

1. Inclusion of 7% Transit Insurance Charges in the Assessable Value:
The Tribunal examined whether the 7% transit insurance charges collected by the appellant should be included in the assessable value. The appellant argued that these charges were part of the transportation cost and should not be included in the assessable value. The Tribunal noted that the appellant collected this amount to compensate for breakages during transit, which was not paid as an insurance premium to any insurance company. The Tribunal relied on the Supreme Court's decision in the Surya Roshni Ltd. case, which held that compensation paid to customers for breakages during transit cannot be treated as insurance and must be included in the assessable value. Consequently, the Tribunal concluded that the 7% collected as transit insurance charges should form part of the assessable value.

2. Eligibility and Quantum of Discounts:
The Tribunal addressed the issue of differential duty on the quantum of discounts not passed to the customers. The appellant claimed that they had passed more discounts to their buyers than the amount claimed as deduction. The Tribunal found it necessary to verify these facts and remanded the matter to the adjudicating authority for determination. The Tribunal emphasized the need for verification of the appellant's claim that they had passed more discounts than claimed.

3. Invocation of Extended Period of Limitation:
Regarding the extended period of limitation, the appellant contended that the issue of transit insurance charges had been within the knowledge of the Department since 1994, and they had furnished necessary details periodically. The Tribunal found merit in the appellant's contention, noting that the Department had the authority to direct the submission of such statements. The Tribunal concluded that the demand for the period from 01.02.1999 to 30.09.2004 should be restricted to the normal period of limitation, as the facts were within the Department's knowledge.

4. Imposition of Penalty under Section 11AC of the Central Excise Act, 1944:
The Tribunal considered the imposition of penalty under Section 11AC of the Central Excise Act, 1944. Given that the issue related to the interpretation of valuation provisions and the duty was confirmed for the normal period, the Tribunal found the imposition of penalty to be unwarranted and unjustified. The Tribunal set aside the penalties imposed under Section 11AC in both the impugned orders.

Conclusion:
The Tribunal upheld the demands confirmed with interest related to the recovery of 7% of the value as insurance charges for the normal period. The demands on the amounts of discounts not passed on were set aside, and the matter was remanded to the adjudicating authority for verification. The penalties imposed under Section 11AC of the Central Excise Act, 1944, were also set aside. The appeals were disposed of accordingly.