2005 (8) TMI 251 - AT - Central Excise

Summary

Issues:
1. Inclusion of freight and insurance charges in the assessable value of goods after the amendment to Section 4 of the Central Excise Act.
2. Claim for refund of duty paid on freight and transit insurance charges.
3. Provisional assessment of duty and unjust enrichment.

Analysis:
1. The issue in this case pertains to whether the freight and insurance charges incurred during the transportation of goods from the factory gate to the depots should be added to the assessable value of the goods after the amendment to Section 4 of the Central Excise Act. The amendment allowed the Department to charge Central Excise duty based on the value at which goods are cleared from a depot. The appellants started including these expenses in the assessable value post-amendment and paid the duty under protest, claiming they were compelled to do so.

2. The appellants filed refund applications for the duty paid on the freight and transit insurance charges. However, the Assistant Commissioner and the Commissioner (Appeals) rejected the claim, stating that such expenses should be included in the assessable value. The appellants argued that the duty was paid under protest and that they had not passed on the duty incidence to their buyers.

3. The Tribunal considered the arguments presented. The decision in the case of VIP Industries Ltd. v. Commissioner of Customs & Central Excise was cited, where the Supreme Court ruled that transportation costs need not be included in the assessable value if the price remains constant nationwide. The appellants' case aligned with this judgment. Additionally, the Tribunal examined the argument regarding provisional assessment under Rule 9B of the Central Excise Rules. The appellants failed to provide evidence supporting provisional assessment, leading to the rejection of their claim for refund. The Tribunal upheld the Commissioner's finding that the duty incidence had been passed on to the buyers, thereby rejecting the appeal.

In conclusion, the Tribunal rejected the appeal, emphasizing that the appellants had not proven that the duty incidence had not been passed on to their buyers and failed to establish the provisional assessment of duty.