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TMI Blog2009 (8) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... ed penalty. The adjudicating authority confirmed the demand. Held that- the definition of the transaction value, it can be seen that the transaction value should include only an amount which is received directly or indirectly from the buyers of the appellant or if it is paid on behalf of the appellant. There is no evidence on record to show that the hire charges which are collected from the transporters are paid on behalf of the consignee or paid by the buyer to appellant. We find that the issue is now squarely covered by the decisions of CCE v. Indian Oxygen Ltd. Accordingly we find that the impugned order-in-appeal is unsustainable and the same is liable to be set aside and we do so. The impugned order is set aside and the appeal is allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckaging material and are capable of being re-used many times, which are essential for the clearance of the said goods. The transporters are collecting transportation charges from the buyers of the appellants products/goods and also some part of the transportation charges are being paid towards rental charges of the tankers to the appellants. Hence, the Deputy Commissioner, Kumool has demanded duty on rental charges of tankers treating them as packing material. The duty so, demanded was Rs.1,10,781/- with interest under Section 1 of the Central Excise Act, 1944 and imposed which is equivalent to duty u/s I of the Central Excise Act, 1944. The adjudicating authority confirmed the demand and also imposed penalties. Aggrieved by such an order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: (a) Seema Oxygen Acetylene Gases P.Ltd.V CCE[2004(176) E.L.T.163 (Tri.-Del.)]. (b) Pure Drinks Ltd. V.CCE[2005 (187) E.L.T.236 (Tri.Kol.)]. (c) BOC India Ltd. CCE[2004 (175) E.L.T.401 (T-Del)] (d) Saurabh Gases v. CCE [2005 (183) E.L.T.401 (T-Del).] (e) Hajoori Sons v. CCE[2004(170) E.L.T.370 (Tri.Mum)] It is his submission that the authorities below ignored the provisions of Section 4D of the Transaction Value would be included in the payments made by the assessee. 4. LD. DR would reiterate the findings of the Id. Commissioner (Appeals) and more specifically on para 4. 5. We have heard both sides and considered the submissions made by them. On perusal of the records, we find that the issue involved in this case is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s packing material as the goods can not be dispatched without packing. Hence, in my view, the rental charges collected from the transporter are to be included in the assessable value for the purpose of calculation of duty. Regarding the extended period of 5 years under Proviso to Section I A of Central Excise Act 1944,1 observed that the appellants has never brought the collection of hire charges to the notice of the department with an intention to evade the payment of duty. Hence I feel that the adjudicating authority has taken a correct decision in demanding the duty. In view of the above, I pass the following order." 6. It can be seen from the above reproduced para that the hire charges seems to be considered as an additional amount in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly an amount which is received directly or indirectly from the buyers of the appellant or if it is paid on behalf of the appellant. There is no evidence on record to show that the hire charges which are collected from the transporters are paid on behalf of the consignee or paid by the buyer to appellant. 7. In the absence of any such evidence, we find that the issue is now squarely covered by the decisions as cited by the Id. Counsel as indicated in para 3. Accordingly we find that the impugned order-in-appeal is unsustainable and the same is liable to be set aside and we do so. The impugned order is set aside and the appeal is allowed with consequential relief, if any (Pronounced and dictated in open Court) - - TaxTMI - TMITax - C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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