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TMI Blog2024 (2) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... on manufacture of goods and not on profit. The impugned order set aside - appeal allowed. - HON BLE MR. P.K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Nishant Mishra , Advocate for the Appellant Shri Santosh Kumar , Authorised Representative for the Respondent ORDER P. K. CHOUDHARY : The present appeal has been filed by the Appellant assailing the Order-In-Appeal dated 13.03.2018 passed by the learned Commissioner (Appeals), CGST, Noida. 2. The facts of the case in brief are that the Appellant is a manufacturer of toughened glass, laminated glass, insulated glass etc. classifiable under various tariff items of Chapter 70 of the first schedule of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same. After due process, SCN dated 17.11.2011 was issued proposing to demand duty amounting to Rs.2,05,507.88/- along with interest and also proposed to impose penalty under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. The Adjudicating Authority vide Order-In-Original dated 25.01.2017 dropped the proceedings initiated vide SCN dated 17.11.2011. Being aggrieved, Revenue filed appeal before the first appellate authority and the learned Commissioner (Appeals) vide the impugned Order-In-Appeal allowed the appeal of the Department and annulled the Order-In-Original. Being aggrieved, the assessee-appellant is in appeal before the Tribunal. 3. The learned Advocate appearing on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged by the appellant from everyone, but proceeded to say that even though freight cannot be a part of the assessable value that wherever freight actually paid was less than the amount collected by way of freight and transportation charges the difference was appropriated by the appellant and, therefore, the same would be a part of the assessable value. In our opinion, the Tribunal proceeded on an incorrect premise. It was clearly held in Indian Oxygen Ltd. v. CCEL that the duty of excise is a tax on the manufacturer and not a tax on the profits made by a dealer on transportation. In view of that decision, the view taken by the Tribunal cannot be sustained. 2. Consequently, the appeals are allowed and the impugned judgment of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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