2013 (3) TMI 260

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..... ems to Indian Railways against the supply contracts. There are two types of contract. In first type of contracts, the price is on FOR destination price which includes element of freight. In second type of contracts there is the factory gate price plus freight on per pieces basis. During the period of dispute the appellant had filed the price lists as per provisions of Rule 173C of the Central Excise Rules, 1944 and after approval by the jurisdictional Assistant Commissioner had paid duty on that basis i.e. in the type of contracts, the duty was paid on FOR price without any deduction of freight and in the 2nd type of contract, the duty was paid on factory gate price. Subsequently, the Department while examining the balance sheet of the appe .....

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..... e price of the goods at the place of removal is not known, then the amount of freight from the place of removal to the place of delivery was to be excluded in accordance with the provisions of sub-section (2) of Section 4, that when the freight from place of removal - factory gate/bonded warehouse to customer's premises was not includible in the assessable value, even if the appellant have received more amount towards freight than the amount which was actually incurred, the differential freight is not includible in the assessable value; that the Apex Court in the case of Baroda Electric Meters Ltd. v. CCE reported in 1997 (94) E.L.T. 13 (S.C.) had held that when the freight charged by the appellant is more than the quantum of freight actual .....

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..... permitted to be stored without payment of duty. Thus in accordance with the definition of place of removal', in the present case the 'place of removal' of the goods would be factory gate; and hence, the value of the goods would be the price for delivery at the factory gate. Therefore there is no question for inclusion of freight charge in the assessable value even if the appellant have received the more amount towards the freight than the expenses on freight actually incurred. In case where the price quoted was on FOR price, the appellant have paid duty on the FOR price without claiming any deduction. In view of the circumstance, we are of the view that there is no short payment. Moreover, we find that the Apex Court in the case of Baroda E .....

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