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TMI Blog2013 (10) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the customer under a separate contract is not includable in the assessable value of the goods sold by the assessee to its customers. The order holds that as the freight is included in the value of goods for payment of VAT, it must be included also for arriving at the value of the goods for purposes of the Act is not appropriate - Both the levies are different and the assessable value for purpose of excise must be only in terms of the Act alone and not on the basis of VAT Act - The regime under the Act is transaction value and each transaction is to be separately assessed depending upon the terms of the contract and the time the ownership in goods is passed - the Tribunal ought to have heard the appellant without insisting on any pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February 2007 to December 2011 sold its manufactured goods in the following manner: ( a) At the factory gate, where the customer took delivery of the goods; (b) At the customer's premises, where excise duty was discharged on the price of the goods and the freight payable for carriage of the goods from the factory to the customer's premises; and (c) Where the goods are sold to the customer at its factory gate but agreed to be delivered at the customer's premises at preagreed freight. This freight is separately shown in the invoices issued to the customer. In this case the appellant had paid excise duty only on the price of the goods and not included therein the freight paid which was reimbursed by the customer. 5 The controversy in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self. Moreover, in this case that is class (c) category of goods the risk in the goods passes to the customer at the factory gate. This fact is to be juxtaposed with goods sold at (b) above where the risk in the goods continues to be with the appellant till the goods are delivered at the customer's premises and accepted by him. In cases covered by (b) above the appellant is on its own discharging duty on the freight element by including it in the assessable value of goods. Moreover, it is submitted that the issue is covered in their favour by decision of the Tribunal and Court, however, the impugned order does not deal with the same on the ground that the decisions relied upon deals with old Section 4 of the Act and is not applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee has shown them separately in the invoice and the exclusion is permissible only for the actual cost so charged from his buyer....... However, the Tribunal has not explained in what manner the aforesaid observations in the Circular reproduced by it would assist the revenue's contention. The above observations, if at all appear to support the petitioner's case. 11 Besides, various decisions dealing with the identical issue rendered by the Apex Court as well as by the Tribunal was cited before the Tribunal. However, none of the decisions were discussed in the impugned order on the ground that all of them dealt with decision rendered in the context of old Section 4 of the Act i.e. prior to 1 July 2000. We find that the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction is to be separately assessed depending upon the terms of the contract and the time the ownership in goods is passed. 14 Therefore, in view of all the above reasons and particularly the decision of the Tribunal in Bharat Conductors (supra), we are of the view that the Tribunal ought to have heard the appellant without insisting on any predeposit of duty. Accordingly the impugned order dated 5 August 2013 is modified and the requirement to predeposit, as directed by the Tribunal is deleted. The Tribunal is directed to hear the appellant's appeal on merits without insisting on any predeposit. 15 We make it clear that observations made by us in this order are only prima facie observations for the purpose of disposing of the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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