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TMI Blog2013 (10) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition of ‘place of removal' when the goods are sold at the customers' premises for delivery, it is the customers' premises which is the ‘place of removal' - there was no merit in the argument of the appellant that where the goods are delivered at the customers' premises at a pre-agreed rate of transportation, the cost of transportation should be excluded from the sale price to arrive at the assessable value. Time-Barred Appeal – Waiver of Pre-deposit - Held that:- The declaration made in the ER-1 return is only with respect to availment of CENVAT credit on the GTA services paid by the appellant - Availment of credit has nothing to do with the valuation of excisable goods - this declaration in the ER-1 returns no way shows that the appellant has declared the correct value or revealed the entire nature of the transactions to the department - the plea of time-bar raised by the appellant is prima facie not admissible – in the absence of a prima facie case and financial hardship, balance of convenience lies in favour of the Revenue - the appellant directed to make a pre-deposit of four crore – upon ssuch submission rest of the dues adjudged against the appellant shall stand wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt charged which includes the cost of transportation also and there is no dispute with regard to these types of transactions. There is a third type of transaction where at the customer's request, the appellant has to supply the goods and deliver it at the customer's premises. For delivery of the goods and deliver it at the customer's premises, the buyers pay the appellant transportation rates at pre-fixed rates. In these cases, ex-factory prices of the goods are shown in the invoices on which excise duty liability is discharged and the freight is shown separately at the rates agreed upon between the appellant and the buyers and on these freight charges, no excise duty is discharged. The VAT liability is also discharged on the value inclusive of freight. In those cases, the department has directed the appellant to discharge excise duty liability on the freight element also since the goods are delivered at the buyer's premises. It is the appellant's contention that the 'place of removal' in these cases is the factory gate and, therefore, on the cost of transportation from the factory to the buyer's premises, excise duty is not liable to be demanded. It is also claimed that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods. (2) The provisions of this section shall not apply in respect of any excisable goods for which a tariff value has been fixed under sub-section (2) of Section 3. (3) For the purpose of this Section, - (a). "assessee" means the person who is liable to pay the duty of excise under this Act and includes his agent; (b). persons shall be deemed to be "related" if- (i) they are inter-connected undertakings; (ii) they are relatives; (iii) amongst them the buyer is a relative and a distributor of the assessee, or a sub-distributor of such distributor; or (iv) they are so associated that they have interest, directly or indirectly, in the business of each other. Explanation - In this clause - (i) "inter-connected undertakings" shall have the meaning assigned to it in clause (g) of section 2 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969); and (ii) "relative" shall have the meaning assigned to it in Clause (41) of section 2 of the Companies Act, 1956 (1 of 1956); (c) "place of removal" means. (i) a factory or any other place or premises of prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excludes only the amount of excise duty, sales tax and other taxes, if any, actually paid or actually payable on such goods. In other words, all the expenses incurred which is charged as part of the price is included in the transaction value. It is on this price excise duty liability is required to be discharged. It is an admitted position that where the appellant delivers the goods at their customers premises on their own, they are discharging excise duty liability on a value inclusive of cost of transportation up to the customers' premises and on that value VAT liability has also been discharged. However, in identical transactions, where the customer requests for delivery at the customer's premises on payment of transportation charges at a pre-agreed rate, the appellant wants to discharge excise duty liability only on the ex-factory price even though sales tax liability is discharged on a value inclusive of transportation. If goods are delivered at the customers' premises, whether at appellant's own volition or at the request of the customer, that should not make any difference in the assessable value of the goods because the goods are sold for delivery at the customers' premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned below. 18. If the assessee and the buyer are not related persons and the price is also the sole consideration for sale but only delivery of goods is made by the assessee at a place other than the factory/warehouse, then the assessable value shall be the "transaction value" without the addition of the cost of transportation from the factory/ warehouse up to the place of delivery. However, exclusion of cost of transportation is allowed only if the assessee has shown them separately in the invoice and the exclusion is permissible only for the actual cost so charged from his buyer. If the assessee has a system of pricing and sale at uniform prices inclusive of equated freight for delivery at factory gate or elsewhere, no deductions for freight element will be permissible. 19. If the goods are not sold at the factory gate or at the warehouse but they are transferred by the assessee to his depots or consignment agents or any other place for sale, the assessable value in such case for the goods cleared from factory/warehouse shall be the normal transaction value of such goods at the depot, etc. at or about the same time on which the goods as being valued are removed from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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