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TMI Blog2024 (6) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... h rights inasmuch as title had already passed to its customer.' As the issue has already been settled in the appellant s own case when the goods are cleared at factory gate, the transportation charges recovered from the customers for transportation of goods to the customer s place is not includible in the assessable value of the goods. Therefore, the appellant is not liable to pay the duty on the transportation charges. The appellant is not liable to pay duty. As no duty is payable by the appellant, no penalty is imposed against the appellant. The impugned order is set aside - appeal allowed. - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. K. ANPAZHAKAN, MEMBER (TECHNICAL) Shri Deepro Sen and Ms.Payal Bharwani, both Advocates for the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance with Rule 5 of the Central Excise Valuation Rules, 2000. 2.2 The appellant was issued a show-cause notice to demand differential Excise duty along with interest alleging that the appellant has wrongly declared freight charges in the invoices and realized excess amount from the customers in the name of transport charges . In some cases, the Appellant realized a higher amount than actual freight cost incurred, entire deduction of freight was inadmissible to the Appellant and exclusion of transportation cost as per Rule 5 of the Valuation Rules is permissible only for the actual cost incurred and charged from customers. Since the Appellant had a system of charging uniform price including equated freight for delivery at factory gate or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Supreme Court in the case of Ispat Industries Ltd. wherein it has been held as under:- 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 place of removal to the place of delivery is to be excluded, save and except in a case where the factory is not the place of removal. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods nor did it reserve such rights inasmuch as title had already passed to its customer. On Excise Appeal No. 351 of 2012 3 facts, therefore, it is clear that Roofit s judgment is wholly distinguishable. Similarly in Commissioner Central Excise, Mumbai-III v. M/s. EMCO Ltd., this Court re-stated its decision in the Roofit Industries case but remanded the case to the Tribunal to determine whether on facts the factory gate of the assessee was the place of removal of excisable goods. This case again is wholly distinguishable on facts on the same lines as the Roofit Industries case. [Emphasis supplied] 6. Respectfully following this judgment, we set aside the impugned OIO and allow the Appeal with consequential relief, if any, as per law. 8. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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