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TMI Blog2002 (5) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... l Companies like Bharat Petroleum Ltd., Hindustan Petroleum Corpn. Ltd. etc. in terms of the contract entered into between them; that the price fixed in the contract is for supply of the cylinder at the factory of the Appellants; that however, at the request of the buyers they arrange for transport of the cylinder's to the buyers' premises and, accordingly, they recover the freight paid to the transporters separately from the buyers; that since the sales take place at the factory, they paid Sales Tax under the Haryana Sales Tax Act as their factory is situated in the State of Haryana; that during the period in question, that is from April, 1998 to April, 2000, the Appellants had taken out an open declaration insurance Policies for insuring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or on return. The learned Consultant also referred to paragraphs 9 and 10 of the said decision in support of his contention that the facts are the same as in the matter M/s. Mauria Udyog Ltd. who were supplying the cylinders to the Oil Companies. He, therefore, contended that the freight and insurance charges are not includible in the assessable value of the cylinders as the sale has taken place at the factory gate which is also evident from the transport documents wherein the name of the customers such as Plant Manager, Hindustan Petroleum Corpn. Ltd. or Bharat Petroleum Corpn. Ltd., Bottling Plant had been mentioned. Finally he submitted that the Purchase Order contains one of the condition that the goods can be handed over to the buyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be deemed to be the normal price of the excisable goods that is to say the price at which goods are ordinarily sold by the asseasee to a buyer in the course of wholesale trade for delivery at the time and place of removal. Section 4(4)(b) defines place of removal as under : "(i) A factory or any other place or premises of production or manufacture of the excisable goods; (ii) A warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty; (iii) A depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearances from the factory; and from where such goods are removed.". 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the godown of the transporters at the destination of the buyers. The goods were insured on account of Prabhat Zarda for covering the loss or damage during the transportation of the goods to the godown of transport agency at the destination of the buyers. The ownership of the goods also remained with the Prabhat Zarda. They were both the consignor and consignee. The goods were delivered to the buyers by the transport agency only when so instructed by M/s. Prabhat Zarda. All these facts are not available in the present matter. As observed earlier, the LPG cylinders were cleared by the Appellants in the name of purchaser and these were delivered at the specific bottling plant of the Oil Company. It is neither the case of the Revenue nor an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the contract, the sale of the goods has taken place at the factory gate and therefore "even by applying the dictum of Escort JCB and Prabhat Zarda, 'the place of removal' is not the premises of the buyer as contended by the Revenue". We find that the earlier decision dated 22-5-2001 by which the Appeal filed by the Appellants were rejected, followed the decisions in the case of Escorts JCB and Prabhat Zarda. As in the present matter the decisions in both these cases have been distinguished and further another Bench of this Tribunal on the similar facts after considering the law has held that the place of removal in these facts is the factory of the Appellants. We, following the ratio of the said decision, allow all the appeals of the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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