2018 (2) TMI 909 - AT - Central Excise

Valuation - includibility - freight element shown in the invoices separately - lower authorities held that the appellants should include the freight also in the transaction value as the terms of sales are on FOR basis, goods to be delivered at the premises of the buyer - Held that - Hon ble Supreme Court in Ispat Industries Ltd. 2015 (10) TMI 613 - SUPREME COURT examining the term place of removal held that under no circumstances, the place of removal can refer to a place of delivery which may on facts be the buyer s premises In the present case, the sales tax is shown in the invoice prepared in the factory and there is nothing to indicate that the sale is not happening at the factory gate. The freight incurred by the appellant is shown separately and collected from the client in terms of their own arrangement - freight need not be included in assessable value. Appeal allowed - decided in favor of appellant.

Summary

Issues: Valuation of excisable goods for Central Excise duty including freight element in transaction value.

In this case, the appellants were engaged in the manufacture and clearance of P.P. caps and PET bottles liable to Central Excise duty. The dispute revolved around the valuation of the excisable goods cleared by the appellants. The appellants were not including the freight element shown in the invoices separately in the transaction value for Central Excise assessment. The Revenue objected to this and proposed the inclusion of the freight element in the transaction value. The lower authorities held that the freight should be included as the terms of sales were on FOR basis, with goods to be delivered at the premises of the buyer. Consequently, the lower authority held that the differential Central Excise duty short paid needed to be recovered from the appellants.

The learned Counsel for the appellant argued that the sale value was separately shown in the invoices, and excise duty was paid accordingly. He contended that since the sale was happening at the factory gate, evidenced by VAT payment at the time of clearance, the freight being shown separately and collected from the client did not make it a part of the transaction value. He relied on a decision of the Hon'ble Supreme Court in a similar case.

On the other hand, the learned Authorized Representative contested the appeal, asserting that the sale should be considered completed upon delivery at the buyer's premises, making the freight an integral part of the transaction value for Central Excise purposes. The AR supported the findings of the lower authorities.

After hearing both sides and examining the appeal record and sample invoices, the Tribunal noted that the invoices clearly indicated the sale price, excise duty, Cess, VAT, and freight separately for each sale. The appellants argued that the sale was effectively completed at the factory gate, and arranging freight at the buyer's request did not make the buyer's premises the place of removal. Citing a previous judgment, the Tribunal emphasized that the place of removal cannot be equated with the place of delivery, which might be the buyer's premises. The Tribunal concluded that the sale was effectively "ex-works" as the invoices were prepared at the factory, and there was no indication that the sale did not occur at the factory gate. The freight was incurred by the appellant separately and collected from the client based on their own arrangement.

Based on the analysis, the Tribunal found no merit in the impugned order and set it aside, allowing both appeals in favor of the appellants.