2018 (10) TMI 629 - AT - Central Excise

Exemption/refund of education/higher education cess - Area Based Exemption - N/N. 56/2002-CE dated 14/11/2002 - Held that - The issue decided in the case of M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI 2017 (11) TMI 655 - SUPREME COURT OF INDIA , where it was held that the assessee is eligible for such refund which is paid alongwith the excise duty once the excise duty itself was exempted - refund allowed. Valuation of excisable goods - Inclusion of of outward freight up to the place of delivery of their finished goods - place of removal - Held that - In the present case the appellants are claiming that the goods were sold on FOR basis and as such the place of removal is the delivery point to the buyer. The freight element incurred by the appellants should form part of the assessable value in such FOR sale - there is no justification for the appellant to consider the assessable value with inclusion of freight element after the goods were sold/removed from the factory. Appeal disposed off.

Summary

Issues:
1. Eligibility for exemption/refund of education/higher education cess under Notification No. 56/2002-CE.
2. Valuation of excisable goods for inclusion of freight component in transaction value.

Analysis:

Issue 1:
The first issue pertains to the eligibility of the appellants for exemption/refund of education/higher education cess under Notification No. 56/2002-CE. The Hon'ble Supreme Court's decision in M/s. SRD Nutrients Pvt. Limited vs. CCE, Guwahati was cited, establishing that the assessee is entitled to a refund of cess paid along with excise duty once the duty itself is exempted. Following the Supreme Court's ratio, the Tribunal decided in favor of the appellants on this issue, as the cess refund is permissible under the exemption notification.

Issue 2:
The second issue revolves around the valuation of excisable goods manufactured and cleared by the appellant, specifically concerning the inclusion of the freight component in the transaction value. The Revenue contended that the goods were sold and cleared at the factory gate, and hence, the freight should not be included in the transaction value. The Tribunal analyzed the statutory definition of "Place of removal" under Section 4 of the Central Excise Act, 1944. The appellants claimed that the goods were sold on a Free on Rail (FOR) basis, making the delivery point to the buyer the place of removal. However, the Tribunal referred to the Supreme Court decision in CCE, Nagpur vs. Ispat Industries Ltd., which clarified that the buyer's premises cannot be considered the place of removal. As the appellants failed to demonstrate clearing the goods from the factory gate to a designated place of removal before sale, the Tribunal held that including the freight element in the assessable value post-sale was unjustified. Consequently, the appellants' claim for including the freight element in the transaction value was deemed unsustainable.

In conclusion, the appellants succeeded in their refund claim for education/higher education cess under Notification 56/2002-CE but did not prevail concerning the inclusion of the freight component in the transaction value. The appeals were disposed of accordingly.