2013 (4) TMI 128 - AT - Central Excise

Waiver of pre-deposit - valuation inclusion of value of the diesel which was purchased for testing, the DG sets manufactured and supplied by the appellant - Held that - On perusing the terms and conditions of the purchase order, we find that the condition of erection, installation and commissioning is not mentioned in the purchase order and the delivery is considered as effected the moment the DG sets are delivered at the purchaser s site. The condition of erection, installation and commissioning is not a part of the sales contract or the purchase order placed for the DG sets manufactured by the appellant and if the same is not a part of the sales contract, we are unable to understand how the cost of the diesel used by the appellant while taking the trial run of the DG sets at the customer s premises, would form a part of the assessable value of the DG sets and is liable to duty. Accordingly, the application for waiver of pre-deposit of balance amounts involved is allowed and recovery thereof stayed till the disposal of appeal.

Summary

Issues:
Waiver of pre-deposit of duty, interest, and penalty based on inclusion of diesel cost in valuation of final product.

Analysis:
The appellant filed a Stay Petition seeking waiver of pre-deposit of duty, interest, and penalty amounting to Rs. 14,39,051/-, which were confirmed by the adjudicating authority and upheld by the first appellate authority. The dispute arose from the Revenue's contention that the cost of diesel used during the trial run of DG sets at the customer's premises should be included in the assessable value of the final product. The appellant argued that the cost of diesel was recovered from the purchasers separately and should not be considered part of the assessable value. The appellant highlighted that the purchase orders for DG sets did not include terms for erection, installation, and commissioning, and the delivery was considered complete upon the sets' delivery at the purchaser's site.

The Revenue contended that the testing of DG sets constituted pre-delivery inspection and after-sales services, making it includible in the assessable value. They emphasized that the appellant was responsible for erection, installation, and commissioning of the sets, and delivery was only complete after the trial run. The Revenue relied on a precedent to support their argument.

After considering the submissions and perusing the records, the Tribunal found that the purchase orders for DG sets did not mention erection, installation, or commissioning as part of the sales contract. Therefore, the Tribunal concluded that the cost of diesel used during the trial run at the customer's premises should not be included in the assessable value. The Tribunal noted that the appellant had made a prima facie strong case for waiver of pre-deposit, and accordingly, granted the application for waiver and stayed the recovery of the balance amounts until the appeal's disposal.