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TMI Blog2008 (12) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... ial tankers, as required under the SMPV Rules, from the Appellants' refinery to the customers' premises and hence, necessarily such tankers have to return empty. He states that these tankers are specially constructed and they cannot be used for carrying other goods. In view of this peculiar nature of transportation involved, there is extra expense involved in bringing the empty tankers back. Consequently, the Appellants charge their customers an increased freight amount which covers not only the outward freight but freight for bringing back empty tankers. He states that the impugned Order demanding a huge amount of differential duty of about Rs.1.00 crore and an equal amount of penalty has been imposed on the Appellants by the Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessable value of the manufactured goods, whereas the outward freight for carrying goods is not considered to be part of the assessable value. In this particular case, the invoice clearly shows the price at which the impugned goods are sold at the factory gate and the freight has been indicated separately. Hence, the assessable value is determinable under Section 4 of the Act, the main Valuation Provisions and there is no need to take recourse to the Valuation Rules and apply Rule 5, as has been done in this case. Only when the value cannot be determined under Section 4 of the Act, the main Valuation Provisions, then recourse has to be taken under the Rules. The Adjudicating Commissioner appears to have lost sight of this legal position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s counsel, it was held that, as duty of excise was a levy on manufacture, charges incurred in the transportation of the excisable goods from the factory gate, the point of sale, were not to be included in the assessable value of the goods and that, in such a case, there was no need to resort to any of the Valuation Rules. In that case, the Revenue had sought to apply Rule 5 ibid and differential duty on freight incurred in respect of goods sold at factory gate. The Tribunal rejected the Revenue's case and held that the assessee's case was covered under Section 4(1)(a) of the Central Excise Act, On the other hand, in the Board's Circular cited by ld. JDR, what was considered by the Board was the question whether cost of return of empty vehic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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