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TMI Blog2022 (7) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... t, in law, be a place of removal under Section 4. In this matrix of facts, the decision of Commissioner holding buyer s premises as place of removal cannot be upheld. The impugned order upholding the demand of duty is therefore set aside. Demand of Interest and penalty - HELD THAT:- Since the demand of duty is set aside, the demand of interest as well as penalty cannot be sustained. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 12274 of 2019 - A/10755 /2022 - Dated:- 30-6-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri. S.S. Gupta Mehul Jiwani (Chartered Accountant) for the Appellant Shri. D. Prithiani, (Authorized Representative) for the Respondent ORDER This appeal has been filed by M/s Savita Oil Technologies Limited against confirmation of demand, Central Excise duty, interest and imposition of penalty. 1.1 The appellants are engaged in manufacture of excisable goods. During the scrutiny of their records, it was noticed that the appellants were recovering transportation/ freight from their buyers and mentioning the same separately on the correspondence invoices/ bills. The appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) KJV Alloy Conductors Pvt. Ltd. 2019 (7) TMI 55 (Hyd) Aditya Birla Chemicals (India) Ltd. 2021 (376) ELT 390 (Kol.) Montage Enterprises Pvt. Ltd. 2018 (364) ELT 1003 (Chan.) 2.1 He further argued that the property in goods is transferred at the factory gate and therefore, the sale is made at ex-factory basis. He argued that Section 39 of the Sale of Goods Act, 1930 states that when the goods are handed over to the transporter, it is deemed that the goods have been delivered to the buyer. He argued that since in the instant case goods are handed over to the transporter along with documents of title in goods, implies that the property in goods is transferred to the buyers. 2.2 He further argued that as per the agreements with the buyers, all goods are liable for inspection by the officials of the buyers and without inspection, the goods cannot be cleared for the purpose of supply to the buyers. He pointed out only the buyer has a right to waive the inspection before dispatch. He argued that at the time of inspection the goods are appropriated to the contract and therefore, the sale of ascertained goods which has been accepted by the buyer at the factory gate implies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 dated 08.06.2018 4. We have gone through rival submissions. We find that while the show cause notice alleged that the amount of freight recovered in the invoices is additional consideration, the Commissioner in the impugned order has held that when the freight is collected in invoices for delivery upto the buyer s premises, the buyer s premises become the place of removal . She relies on the decision of Hon ble Apex Court in the case of Roofit Industries Ltd., 2015 (319) ELT 221 (SC) and Circular No. 1065/4/2018 dated 08.06.2018. 4.1 We find that in the case of Ispat Industries (supra), after taking note of the decision of the Hon ble Apex Court in the case of Roofit Industries (supra) and the case of Emco Ltd. 2015 (322) ELT 394 (SC), the Hon be Apex Court came to the following conclusion: 14 . This view of the law was reiterated in Government of India v. Madras Rubber Factory Ltd., (1995) 4 SCC 349 = 1995 (77) E.L.T. 433 (S.C.). Interestingly, in paragraph 39 of the judgment, cost of transportation from the factory gate to the place of removal not forming part of excise duty was conceded by the revenue. 15 . Section 4 as substituted by the 1973 Amendment A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which would then possibly have reference to the buyer s premises. 17 . It is clear, therefore, that as a matter of law with effect from the Amendment Act of 28-9-1996, the place of removal only has reference to places from which the manufacturer is to sell goods manufactured by him, and can, in no circumstances, have reference to the place of delivery which may, on facts, be the buyer s premises. 18 . By an Amendment Act which came into effect on 1-7-2000, Section 4 was substituted yet again as follows :- Section 4. Valuation of excisable goods for purposes of charging of duty of excise. - (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall - (a) In a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, by the transaction value; (b) In any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed. (2) The provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterestingly, it will be noticed that under Section 4(3)(c), the place of removal is defined as it had been defined in the substituted Section 4 (by the 1973 Amendment) before its further amendment in 1996. What is conspicuous by its absence in the present Section is Section 4(2) and sub-section (b)(iii) in the previous Section 4 (after its amendment in 1996). It is clear therefore, that for the second period in question in the present case, namely, 1-7-2000 to 31-3-2003, the depot, premises of a consignment agent or any other place from which excisable goods are to be sold after their clearance from the factory are no longer places of removal. Also, the definition of transaction value makes it clear that freight or transportation expenses are not included in calculating the excise duty payable. 20 . It is necessary also to refer to Rules 5 and 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 which came into force on the same date as the amendment to Section 4, i.e., 1-7-2000. These Rules read as under :- Rule 5. Where any excisable goods are sold in the circumstances specified in clause (a) of sub-section (1) of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcisable goods are sold in the circumstances specified in clause (a) of sub-section (1) of section 4 of the Act except the circumstances in which the excisable goods are sold for delivery at a place other than the place of removal, then the value of such excisable goods shall be deemed to be the transaction value, excluding the cost of transportation from the place of removal upto the place of delivery of such excisable goods. Explanation 1. - Cost of transportation includes - (i) the actual cost of transportation; and (ii) in case where freight is averaged, the cost of transportation calculated in accordance with generally accepted principles of costing. Explanation 2. - For removal of doubts, it is clarified that the cost of transportation from the factory to the place of removal, where the factory is not the place of removal, shall not be excluded for the purposes of determining the value of the excisable goods. 23. It is clear, therefore, that on and after 14-5-2003, the position as it obtained from 28-9-1996 to 1-7-2000 has now been reinstated. Rule 5 as substituted in 2003 also confirms the position that the cost of transportation from the plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other arranging for the transit insurance for the buyer and charging the amount expended for the purpose from him separately. [at para 8] From the above passage it is clear that ownership in the property may not have any relevance insofar as insurance of goods sold during transit is concerned. It would therefore not be lawful to draw an inference of retention of ownership in the property sold by the seller merely by reason of the fact that the seller had insured such goods during transit to the buyer. It is not necessary that insurance of the goods and the ownership of the property insured must always go together. It may be depending upon various facts and circumstances of a particular transaction and terms and conditions of sale. A reference has also been made to Colinvauz s Law of Insurance, 6th Edn. by Robert Merkin to indicate that there may be insurance to cover the interest of others, that is to say, not necessarily the person insuring the interest must be the owner of the property. [at para 10] 26. This Court then went on to follow Bombay Tyre International s case and ultimately held :- In view of the discussion held above, in our view the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transport charges from the place of removal to the place of delivery were to be excluded from the value. We have heard the parties at length. In our view, Section 4 has to be read as a whole. Under Section 4(1)(a), the normal price is the price at which goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and price is the sole consideration for sale. Therefore, the normal price is the price at the time of delivery and at the place of removal . Before the amendment, the place of removal was only the factory or any other place or premises where the excisable goods were produced or manufactured or a warehouse or any other place or premises where any excisable goods have been permitted to be deposited without payment of duty. Thus, the price would be the price at that place. By the amendment proviso (ia) to Section 4(1)(a) has been added. Under Section 4(1)(a)(ia) where the price of the goods is different for different places of removal, each such price was deemed to be the normal price of such goods in relation to such place of removal . Thus, if the place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holds that even in a depot sale, freight and insurance for delivery to customers from the depot to their premises cannot possibly be included, and followed the Escorts JCB case supra. 31 . With this we come to two recent judgments of this Court. In CCE Customs v. Roofit Industries Ltd., 2015 (319) E.L.T. 221 (S.C.), this Court, after distinguishing the Escorts JCB s case, stated :- The principle of law, thus, is crystal clear. It is to be seen as to whether as to at what point of time sale is effected, namely, whether it is on factory gate or at a later point of time, i.e., when the delivery of the goods is effected to the buyer at his premises. This aspect is to be seen in the light of the provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer. The charges which are to be added have put up to the stage of the transfer of that ownership inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has to be on buyer s account and cannot be a component which would be included while ascertaining the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the goods is to pass to the buyer. These are clear finding of facts on the aforesaid lines recorded by the Adjudicating Authority. However, CESTAT did not take into consideration all these aspects and allowed the appeal of the assessee by merely referring to the judgment in Escorts JCB Ltd. [(2003) 1 SCC 281 : (2002) 146 E.L.T. 31] Obviously the exact principle laid down in the judgment has not been appreciated by CESTAT. [at paras 12-15] 32 . It will be seen that this is a decision distinguishing the Escorts JCB s case on facts. It was found that goods were to be delivered only at the place of the buyer and the price of the goods was inclusive of transportation charges. As transit damage on the assessee s account would imply that till the goods reached their destination, ownership in the goods remained with the supplier, namely, the assessee, freight charges would have to be added as a component of excise duty. Further, as per the terms of the payment clause contained in the procurement order, payment was only to be made after receipt of goods at the premises of the buyer. On facts, therefore, it was held that the sale of goods did not take place at the factory g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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