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TMI Blog1988 (7) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was an ex-factory price which is ascertainable. If once that is the position that should be the basis upon which the value is to be determined, the other expenses, costs or charges must be excluded. Inasmuch as that is the correct position in law, we direct that the Assistant Collector will re-fix the assessable value as indicated in this judgment. The Tribunal's judgment is modified accordingly. These appeals are disposed of. - 2801-06 of 1987 - - - Dated:- 26-7-1988 - Sabyasachi Mukharji and S. Ranganathan JJ. [Judgment per : Sabyasachi Mukharji, (J)]. - These are appeals under Section 35L(b) of the Central Excises and Salt Act, 1944 (hereinafter called 'the Act'). 2. The appellant manufactures compressed Oxygen and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II) Cylinder deposit; and (III) Rentals. 3. The department's case was that these being additional charges, should form part of the assessable value. 4. It was urged on behalf of the revenue that the price list submitted by the manufacturers In respect of clearances from their Vijayawada depot the appellant claimed abatements on account of freight and handling charges in respect of which they did not produce any evidence. It was, therefore, held by the Department that no such deduction was admissible. It, however, appeared to the Tribunal that the manufacturers have admitted that separate prices were indicated for the same goods in respect of Visakhapatnam factory which is the place of manufacture and Vijayawada, a place about 400 Km. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. In this case the price of the goods at the factory gate Visakhapatnam is known. It is clear from Section 4 that the delivery and collection charges have nothing to do with the manufacture as they are for delivery of the filled cylinders and collection of the empty cylinders. These charges have to be excluded from the assessable-value. Insofar as the loading charges Incurred for loading the goods within the factory are concerned, they are to be included in the assessable-value, irrespective of who has paid for the same but the loading expenses incurred outside the factory gate are excludible. Duty is excise to a tax on the manufacture, not a tax on the profits made by a dealer on transportation. 6; It is necessary to reiterate tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , then it would be for the manufacturer to claim on the basis of actual evidence of the deductions should be admissible from the price list as per the provisions of the Act. 7. Counsel for the respondent, Ms. Indu Malhotra who argued this case with considerable ability before us drew our attention to the following observations in the Bombay Tyre International (supra) at pages 376 and 377 of the report: "Accordingly, we hold that pursuant to the old Section 4(a) the value of an excisable article for the purpose of the excise levy should be taken to be the price at which the excisable article is sold by the assessee to a buyer at arm's length in the course of wholesale trade at the time and place of removal. Where, however, the excisable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng organisation expenses including advertisement expenses cannot be deducted. It will be noted that advertisement expenses, marketing and selling organisation expenses and after-sales service promote the marketability of the article and enter into its value in the trade. Where the sale in the course of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted. But the assessee will be entitled to a deduction on account of the cost of transportation of the excisable article from the factory gate to the place or places where it is sold. The cost of tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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