2016 (9) TMI 477 - AT - Central Excise

Valuation - non-inclusion of third party test/inspection charges being made at the request of the customers, in addition to the normal test, in the value of Transformers - charges recovered separately from the customers - Held that - the learned Commissioner (Appeals), after recording the submissions advanced by the Appellant, has observed that the cost of additional test/inspection carried out by the third party at the behest/request of the buyer cannot be included in the assessable value under the circumstances, recorded in the said order. The learned Commissioner (Appeals), after accepting the said principle, remanded the matter to the Adjudicating authority for verification of the facts viz. whether the third party tests carried out by the Appellant is in addition to the normal test and at the behest of the customers etc. We do not see any deficiency in the findings of the ld. Commissioner (Appeals). Instead, the Appellant should have followed the direction of the learned Commissioner (Appeals) and submitted the evidences before the Adjudicating authority and by now, the matter would have been disposed of. Nevertheless, we remand the matter to the Adjudicating authority to examine the facts and evidences on record, in the light of the case laws and the observations made by the learned Commissioner (Appeals) and decide the issue afresh. - Appeal allowed by way of remand

Summary

Issues:
- Duty short paid on account of non-inclusion of testing charges in the value of Transformers
- Imposition of penalty under Section 11AC of Central Excise Act, 1944
- Appeal against the order passed by Commissioner (Appeals)
- Inclusion of third party test charges in the assessable value of transformers
- Remand order by the Commissioner (Appeals) for detailed verification of facts

Analysis:

1. Duty Short Paid and Penalty Imposition:
The appeal was filed against the Order-in-Original (OIA) passed by the Commissioner (Appeals) for recovery of duty short paid due to non-inclusion of testing charges in the value of Electrical Transformers. The demand was confirmed, and a penalty equal to the amount was imposed under Section 11AC of the Central Excise Act, 1944. The Appellant contested this decision by filing an appeal before the Commissioner (Appeals).

2. Inclusion of Third Party Test Charges:
The Appellant, engaged in manufacturing Electrical Transformers, argued that the testing charges conducted by third parties at the request of customers should not be included in the assessable value of the transformers. The Appellant contended that these charges, recovered separately from customers through commercial invoices, were in addition to normal in-house tests and should not be considered as part of the assessable value. The Commissioner (Appeals) remanded the matter to the Adjudicating authority for detailed verification of facts regarding the inclusion of these third party test charges.

3. Remand Order and Further Directions:
The Appellant's Advocate submitted that the Commissioner (Appeals) should have decided on the inclusion of additional test charges instead of remanding the matter. However, the Revenue's Representative argued that the remand was necessary for verifying the facts before concluding on the includability of these charges in the assessable value. The Tribunal found no deficiency in the Commissioner (Appeals)'s findings and upheld the remand order for the Adjudicating authority to examine the facts, case laws, and observations made by the Commissioner (Appeals) before deciding the issue afresh. The Tribunal allowed the appeal by remanding the matter to the Adjudicating authority, emphasizing the completion of proceedings within three months from the date of the order.

In conclusion, the judgment focused on the dispute regarding the inclusion of third party test charges in the assessable value of Electrical Transformers, leading to a remand order for further verification and decision by the Adjudicating authority. The Tribunal emphasized the importance of following the directions provided by the Commissioner (Appeals) and ensuring a reasonable opportunity for the Appellant during the proceedings.