2015 (12) TMI 867 - AT - Central Excise

Valuation - inclusion in the assessable value of the HSD and motor spirit of the delivery (transportation) charges being charged from the dealers on equalised basis - Held that - there is no justification for not permitting deduction of the equalized freight for determining the assessable value, in view of the judgment of the Tribunal in the case of Banmore Cable and Conductors vs. CCE, Indore (2014 (3) TMI 917 - CESTAT NEW DELHI). Moreover on going through some of the sales invoices placed on record, it is seen that the delivery charges are separately mentioned and the same have been charged at the equalized rate of ₹ 44 per K.L. in respect of delivery to places within the radius of 39 K.Ms. from the storage deport and at the rate of ₹ 1.2 per K.L. per K.M to other places. When the delivery charges are separately mentioned in the invoices just because the same have been charged at an equalized rate, their deduction cannot be disallowed. The impugned order, therefore, is not correct and as such the appellant have prima-facie case in their favour. The requirement of pre-deposit of the duty demand, interest and penalty is, therefore, waived for hearing of the appeal and recovery thereof is stayed during pendency of the appeal - Stay granted.

Summary

Issues:
Inclusion of delivery charges in assessable value for duty calculation.

Analysis:
The case involved a dispute regarding the inclusion of delivery charges in the assessable value of petroleum products like HSD and motor spirit for duty calculation. The appellant operated a storage depot in Delhi and charged transportation charges to dealers based on an equalized rate per kiloliter within a certain radius and a different rate for deliveries beyond that radius. The Department contended that these charges should be included in the assessable value as they did not represent actual expenses incurred. The Additional Commissioner confirmed duty demands totaling &8377; 43,62,443 along with interest and penalties. The Commissioner (Appeals) upheld this decision, leading to the filing of appeals and stay applications.

During the hearing, the appellant's counsel argued that the delivery charges were based on rates fixed by the Oil Co-ordination Committee and were higher than the charges recovered from dealers. They cited Central Excise Valuation Rules, 2000, to support their claim that the charges, mentioned separately in the invoices, should not be included in the assessable value. Reference was made to previous tribunal judgments where transportation charges were not considered part of the assessable value. The Department opposed the stay application, emphasizing that only actual freight charges were deductible under the rules and that the invoices did not specify the charges separately.

After considering both sides' arguments and reviewing the records, the Tribunal found in favor of the appellant. They noted that the delivery charges, though equalized, were separately mentioned in the invoices and should be deductible for determining the assessable value. Citing precedent from a previous case, the Tribunal concluded that there was no justification for disallowing the deduction of equalized freight. As a result, they waived the requirement for pre-deposit of duty demand, interest, and penalty, allowing the appeal to proceed without immediate recovery. The stay application was granted, and the impugned order was deemed incorrect based on the evidence presented.

In summary, the Tribunal ruled in favor of the appellant, stating that the equalized delivery charges, when separately mentioned in the invoices, should be deductible for calculating the assessable value of the goods. The decision was supported by legal precedents and the specific circumstances of the case, leading to the waiver of pre-deposit requirements and the stay of recovery during the appeal process.