2016 (1) TMI 698 - AT - Central Excise

Valuation - Non-inclusion of freight collected separately, not shown in the invoice, to be added in the assessable value - addition to assessable value - Held that - The demand of short levy was confirmed on the first issue only on the ground that the freight charges were not mentioned in the invoices and as such the assessee is liable to pay tax on this amount. We find no legal basis for such assertion. The fact that the place of removal is ex-factory as asserted by the appellant has not been disproved by adducing any evidence by the Revenue. That the appellants had arrangement for delivery of goods to the buyer after their clearance from the factory has nothing to do with the assessable value of the goods unless it is established that place of removal for valuation purpose is the delivery point at the buyer s premises. No such evidence is forthcoming in this case. - Decided in favour of assessee Certain amount collected, in excess of actual freight, from the buyers to be added in the assessable value - Held that - The appellants collected certain amount towards freight from their buyers, but actually spent less amount towards such freight. The Revenue added this excess amount in the assessable value. We find that when the goods are delivered ex-factory and the place of removal is factory gate, the freight element has no bearing on the valuation of the product. The freight amount not being shown in the invoice or some additional income has come to the appellant from freight charges cannot be the reason to add extra amounts in the invoice meant for ex-factory delivery of goods. There should be clear evidence that the invoice price for the goods for delivery at the factory gate is not reflecting the correct value and certain extra consideration is accruing to the appellant. No such evidence has been discussed in the impugned orders. Thus in the absence of evidence such addition to the value is not legal tenable. - Decided in favour of assessee

Summary

Issues:
- Inclusion of freight charges in the assessable value for Central Excise duty.

Analysis:
The judgment involves two appeals by the appellant related to the manufacture of expanded perlite ore and the imposition of Central Excise duty. The Revenue initiated proceedings against the appellant for short payment of duty, leading to an order confirming a demand and imposing a penalty. Both the Revenue and the appellant appealed against this order. The Commissioner (Appeals) dismissed the appellant's appeal but allowed the Revenue's appeal to enhance the penalty. The present appeals challenge these two orders of the Commissioner (Appeals).

The main issue raised by the appellant was the inclusion of freight charges in the assessable value. The appellant argued that the goods were sold ex-factory and fell under Clause (a) of Section 4 of the Central Excise Act, making the addition of freight charges unnecessary. The Revenue did not provide evidence to rebut this fact. The Tribunal identified two points of dispute regarding the freight element. Firstly, whether freight collected separately but not shown in the invoice should be added to the assessable value. Secondly, if any excess amount collected from buyers as freight should be included in the assessable value. The Tribunal found no legal basis for adding these amounts, emphasizing that when goods are delivered ex-factory, the freight element does not impact the product's valuation unless proven otherwise. The Tribunal cited precedents to support its conclusion that excess freight charges should not be automatically added to the assessable value without clear evidence of undervaluation.

In light of the discussion, the Tribunal held that the impugned appellate orders were not sustainable. Consequently, both appeals were allowed by setting aside the orders of the Commissioner (Appeals).