9911796707
TMI Blog2007 (5) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... Penalty (Rs.) OIO/OIA No. and date 1. E/1694/03 Mar. 1997 to Sep. 2001 28-3-02 21,72,451-00 21,72,451-00 9/CMM/09/2003 dated 26-3-03 2. E/1719/03 Mar. 1997 to Sep. 2001 28-3-02 NIL 5,00,000-00 9/CMM/09/2003 dated 26-3-03 3. E/2740/05 Oct. 2001 to Sep. 2002 and Oct. 2002 to June 2003 5-8-03 18-9-03 8,08,143-00 3,89,060-00 8,08,143-00 3,89,060-00 BR/119 TO 120/Th-1/2005 dated 17-6-05 4. E/2938/05 Oct. 2001 to Sep. 2002 and Oct. 2002 to June 2003 5-8-03 18-9-03 NIL 2,50,000-00 BR/119 TO 120/Th-1/2005 dated 17-6-05 5. E/3714/05 July 03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tty as their authorized transport contractor for moving the gypsum by road to their factory and informed the appellant of the same in their purchase orders. The buyers paid M/s. N.S. Shetty for loading and transportation. The revenue proceeded against the appellants on the ground that the loading and leveling charges paid by the independent buyer of gypsum to M/s N.S. Shetty and also the amount incurred in shifting the gypsum within their factory are required to be included in the assessable value of the gypsum. The lower authority relying on the decision of the Hon' ble Supreme Court in the case of M/s. Indian Oxygen Ltd., 1988 (36) E.L.T. 723 (S.C.) held that the loading and leveling charges incurred prior to clearance of goods from the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rers is also includible in the assessable value because Shri N.S. Shetty is just a part of the set up of the appellants. In other words, according to the revenue, whatever amount is received by M/s. N.S. Shetty would be considered as received by the appellant. There is no substance in revenue s contention that Shri N.S. Shetty is the appellant s man. As far as the appellant and M/s. N.S. Shetty are concerned they have an agreement under which M/s. N.S. Shetty has to carryout the task of transporting the gypsum from one place in the factory to another place and also do the leveling. No doubt the appellant incurs expenses for the above purpose. Definitely, the appellant would take in to account the expenses incurred while selling the gypsum t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. It is clear that only amounts which the buyer is liable to pay to the assessee are includible in transaction value. In the present case, Revenue has not shown that any portion or all of amounts received by M/s. N.S. Shetty flows back to the appellant. Hence these amounts cannot be added to the assessable value of gypsum cleared by the appellant. 4. There are many decisions which hold that the cost of transportation from the factory to the buyer s premises is not includible in the assessable value so long as the factory get price exists. The appellants placed reliance on the following two dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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