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TMI Blog1988 (11) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in the assessable value and should be allowed abatement. The Assistant Collector rejected the appellants claim for the abatement of the transport charges under Section 4(2) of Central Excises and Salt Act for the reason that there were sales at the factory gate and therefore, the price applicable in respect of those sales of the appellants was applicable to the sales of the goods to other consumers also in terms of Section 4(1) (a) of the Central Excises and Salt Act, 1944 and that the question of abatement of the transport charges did not arise. The Collector (Appeals) however allowed the appellants claim and allowed the abatement of equalised freight for different areas by different amounts. The Government of India after examining the records, were of the tentative view that the order of the Appellate Collector was not proper, legal and correct. The ground given in this regard as set out in the show cause notice issued by the Government of India are reproduced below for convenience of reference - It is seen that the goods manufactured by the assessee were sold in Greater Bombay upto Dahisar and Thane at a uniform price irrespective of whether the deliveries are made at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim in pursuance to this order of the Assistant Collector. 4. The Assistant Collector who considered the refund claim, however, rejected the claim made by the Assessee for the following reasons - I find that refund claim is filed by the party on account of abatement of transport charges allowed by A.C.C. Ex. Bombay Dn. VII for the period earlier to 1.10.1975 and the order passed by the concerned Assistant Collector was based in C.A. certificate for the period 1st July, 1974 to 30th June, 1975 which in fact has no relevant to the present refund claim. It also find that party has issued three types of cash memos for sale of soft drinks in Greater Bombay viz. (1) for cash sale at the factory (2) Direct sales to Industrial units (3) Cash sale through their salesmen in Greater Bombay. I also find that sales at factory gate vis-a-vis the total sales during the last 2 years were as under - Year Total Sale Sale at factory 30.6.1975-76 68,53,993 Dozen 1,661 Dozen 30.6.1976-77 73,86,719 Dozen 1,520 Dozen The party has no sales Department/godown in Greater Bombay and all sales are effected from the factory itself. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.7.1976 to Rs. 40,62,831 Rs. 1.10 30.6.1977 36,93,359-1/2 1.7.1977 to Rs. 46,12,333 Rs. 1.00 30.6.1978 46,00,349 In view of the fact that the appellants have now produced the cost of transportation incurred by them during the relevant period, I allow the appeals with consequential relief, subject to the following conditions - (i) The Department should be satisfied that the cost of transportation as indicated in the Chartered Accountant s certificates dated 9.2.1977, 28.2.1978 and 25.1.1979 and now claimed by the appellants were actually incurred. The appellants are directed to furnish to the lower authority, copies of the certificates which have been filed by them before the appellate authority. (ii) Since the original abatement in the assessable value towards cost of transportation was restricted to Rs. 1.06 the refunds claimed by the appellants will be granted subject to the conditions that the maximum abatement will not exceed Rs. 1.06. It could be lower based upon the actual cost of transportation incurred by the appellants, as indicated in the Chartered Accountant s cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Central Excise (1988 (36) E.L.T. 723). He stressed that the Hon ble Supreme Court in the case of Indian Oxygen has clearly held that if the price at the factory gate is available, the same should be adopted for the purpose of assessment. 7. The learned advocate for the respondents pleaded that there was no dispute that the factory gate price as pleaded by the Revenue, included in the element of equalised freight. He stated that as it is, sales at the factory gate which had been made, were only stray sales made to their own employees on special occasions like birthdays, etc. or on festival occasions. He pleaded the decision of the lower authorities were given at a time when the law had not been settled by the judgment of the Hon ble Supreme Court and that in view of the same, legally there was no infirmity in the order of the Collector (Appeals). He pleaded that the ratio of the judgment of the Hon ble Supreme Court cited by the Revenue in the case of Union of India v. Bombay Tyres (supra) squarely applies to the facts of this case. He pleaded that where the equalised freight element is included in the sale price, the same was present in the price irrespective of the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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