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TMI Blog2024 (8) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... D VERSUS CCE, JAMMU [ 2017 (11) TMI 90 - CESTAT CHANDIGARH] where it was held that ' when an amount of duty is refunded to the assessee, under Notification No. 1/2002- C.E., the same has to be deducted from the excise duty paid by the appellant while arriving at actual value addition'. Whether freight and transit are part of the sale price as appellant s sales are for destination sales? - HELD THAT:- The issue decided in the case of KANGARO INDUSTRIES LIMITED VERSUS CCE, JAMMU [ 2017 (11) TMI 90 - CESTAT CHANDIGARH] where it was held that ' the freight outward is includible in the sale value.' The impugned orders are not sustainable in law therefore, set aside - appeal allowed. - HON BLE MR. S. S. GARG , MEMBER ( JUDICIAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, while discharging its central excise duty; and the remaining payable duty, if any, must be paid in cash through account current or PLA. The said duty paid through PLA is refundable in cash subject to value addition norms fixed and notified in the said Notification. The impugned goods, manufactured by the Appellant are covered under S.No. 19 of the Notification, on which value addition is fixed at 36%. The Notification further provides that the manufacturer has an option not to avail such fixed rates and may apply to the Commissioner of Central Excise for fixation of a special rate, if the actual value addition at least 115% of the rate specified in Notification. 2.3 Since the actual value addition was more than 115% of the rate specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re admissible deductions for the purpose of arriving at the sale value for fixation of special sales. (iv) Butane oil and silver ink are not consumables and thus required to be added to the cost of raw material. 2.5 As per the appellant, the appellant in the present case is only praying for deciding the first two issues, issue (i) and (ii). The appellant is not contesting issue no. (iii) and (iv). Hence, the present appeal. 3. Heard both the parties and perusal of the material on record. 4. Ld. Counsel for the appellant submits that the impugned orders are not sustainable in law as the same have been passed without properly appreciating the facts and the law and binding judicial precedents in the appellants own case for the previous period. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to fright and transit insurance, the Ld. Counsel submits that all the sales made by the appellant are FOR destination sales. The invoice issued by the appellant shown 'freight as PAID'. Therefore, when the appellant cleared goods to the customer, the freight has already been paid. Furthermore, in the balance sheet 'outward freight' is shown under selling and distribution expenses. With regard to transit insurance the appellant has taken a Transit Insurance Policy which clearly showed that the insurance of the goods is to be done by the appellant. This issue has already been settled by this tribunal in the case of Kangaro Industries Ltd cited (Supra). 4.4 Ld. Counsel further submits that by relying upon the decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the exemption notification will require to be kept out of calculation. The Commissioner has clearly fallen into an error when he claims that refund is the exemption notification is an incentive and not value addition. We note that refund is not due to any excess duty paid but an extraordinary mechanism to implement the exemption notification. The refunded amount is the portion which is exempted. We also find that had there been plain exemption, then this problem would not have been arisen. 15. In view of foregoing, on the same analogy, we hold that when an amount of duty is refunded to the assessee, under Notification No. 1/2002- C.E., the same has to be deducted from the excise duty paid by the appellant while arriving at actual value ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom sale price. In this regard, reference is invited to Hard Castle Petrofer Pvt. Ltd. v. C.C.E., Jammu [2014 (304) E.L.T. 576 (Tri.- Del.)J. We also find that in the balance-sheet for 2011-2012, the freight outward is shown under selling and distribution expenses. Hence, the freight outward is includible in the sale value. 16.1 In the case law of C.C.E., Shillong v. India Carbon Ltd. (supra) relied by the Revenue, the transportation charges upto buyer's premises were reimbursed by the buyer. That is not the case in the present appeal. Hence, the ratio of the said case law is not applicable to the facts of this appeal. 16.2 In view of above, the finding of the Commissioner on this count is also not sustainable and is liable to be set as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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