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TMI Blog2013 (1) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... harges - Held that:- Following the decision in case of ASSOCIATED CEMENT CO. LTD. (1998 (5) TMI 128 - CEGAT, MADRAS) and later affirmed by Supreme Court of India that deduction granted by the Shipping Company as despatch money on the cost of transport. When this point is clear then the question gets answered automatically inasmuch as that when this despatch money is a part of freight, such deduction granted will be eligible for exclusion from the assessable value, because only the noted cost of transport would be added to the assessable value. In favour of assessee - C/523/2009 - A-440/KOL/2012 - Dated:- 5-7-2012 - Shri S.K. Gaule, Dr. D.M. Misra, JJ. REPRESENTED BY : Shri S.K. Mohanty, Advocate, for the Appellant. Shri S. Chakra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. Commissioner of Customs (Preventive) reported in 2004 (172) E.L.T. 145 (S.C.) and Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 (S.C.) and also relied upon the decision of the Hon ble Bombay High Court in the case of Karan Associates v. Commissioner of Customs (Import), Mumbai reported in 2009 (236) E.L.T. 23 (Bom.), wherein it was held that the assessee is required to challenge the assessment order for claiming refund. Being aggrieved the same, the appellant filed this appeal. 3. The contention of the appellant is that the ld. Commissioner (Appeals) has rejected the appeal filed by them on the ground which was not the part of the show-cause notice or the order passed by the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , wherein it was held that the refund is not admissible in case the assessment order is not under challenge. We find that this issue was not the part of the show-cause notice and the adjudication proceedings and the ld. Commissioner (Appeals) has travelled beyond the scope of show-cause notice. The Hon ble Supreme Court in the case of Reckitt Colman of India Ltd. (supra) has held as under : 3. It will be remembered that the case of the Revenue, which the appellant had been required to meet at every stage from the show cause notice onwards, was that the said product was a preparation based on starch. Having come to the conclusion that the said product was not a preparation based on starch, the Tribunal should have allowed the appeal. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents with the costs of maintaining an efficient facility, it is only fair that the fruits of that efficiency should also accrue to them. We, therefore, order that dispatch money earned because of unloading of the chartered vessel before the stipulated lay time should be deducted from the costs. Conversely, if the appellants have paid any penalty for delayed unloading of the ship, the same should be added to the costs. This Tribunal in the case of Collector of Customs, Visakhapatnam v. Associated Cement Co. Ltd. reported in 1998 (104) E.L.T. 395 (Tribunal), has held as under : 4. On a careful consideration of the submissions, we notice that the cost of transport is part of assessable value. Now the question is if any deduction is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that no bonus earned for quick unloading should be deducted under Section 14 of the Act. Respectfully following these two ratios, we hold that the Commissioner has rightly allowed the appellant s claim. We do not see any merit in this appeal and hence reject the same. The Hon ble Supreme Court dismissed the Civil Appeal filed by the Department against the aforesaid decision in the case of Collector v. Associated Cement Co. Ltd. - 2001 (130) E.L.T. A92 (S.C.). In these circumstances, we find that the order of the ld. Commissioner (Appeals) is not sustainable and therefore, the orders of both the lower authorities are set aside and the appeal is allowed with consequential relief, if any, as per law. (Dictated and pronounced in the op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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