2013 (10) TMI 1047 - HC - Central Excise

High Court Allows Appeal Without Predeposit, Directs Tribunal to Hear on Merits

The High Court modified the Tribunal's order, allowing the appeal without the predeposit requirement. The Court directed the Tribunal to hear the appeal ... Valuation - inclusion of Freight Charges in the Assessable Value - for the purpose of VAT freight was included in the value - Whether freight charges which are shown separately in the invoices and reimbursed by the Customer are to be included in the assessable value of the goods or not – Held that:- Following Commissioner of Central Excise v/s. Bharat Conductors [2009 (11) TMI 711 - CESTAT NEW DELHI ] - the Commissioner(Appeals) allowed the assessee's appeal and held that where the goods are sold at the factory gate and the freight is incurred for carriage of the goods, which is subsequently reimbursed by the customer under a separate contract is not includable in the assessable value of the goods sold by the assessee to its customers. The order holds that as the freight is included in the value of goods for payment of VAT, it must be included also for arriving at the value of the goods for purposes of the Act is not appropriate - Both the levies are different and the assessable value for purpose of excise must be only in terms of the Act alone and not on the basis of VAT Act - The regime under the Act is transaction value and each transaction is to be separately assessed depending upon the terms of the contract and the time the ownership in goods is passed - the Tribunal ought to have heard the appellant without insisting on any pre-deposit of duty - the order modified and the requirement to pre-deposit deleted - The Tribunal is directed to hear the appellant's appeal on merits without insisting on any pre-deposit – stay granted. Issues:1. Challenge to the order of Customs Excise & Service Tax Appellate Tribunal regarding predeposit under Section 35F of the Central Excise Act.2. Controversy over inclusion of freight charges in assessable value of goods.3. Interpretation of Circular No.354/81/2000 TRU regarding inclusion of freight charges.4. Comparison of goods sold at factory gate vs. customer's premises.5. Applicability of decisions related to old Section 4 of the Act.6. Discrepancy between VAT and excise duty assessments.Analysis:1. The appeal challenged the Tribunal's order directing a predeposit of Rs.4 crore out of Rs.8.02 crore of excise duty, interest, and penalty. The appellant's appeal would only be heard on merits post this predeposit as per Section 35F of the Act.2. The main issue was whether freight charges, reimbursed by the customer and shown separately in invoices, should be included in the assessable value of goods. The appellant argued against such inclusion for goods sold at the factory gate and delivered at the customer's premises with separately charged freight.3. The Tribunal, influenced by a Board Circular, held that freight charges must be added to the assessable value of goods, even for sales where freight was separately invoiced. This decision was based on the inclusion of transportation costs for VAT liability and previous rulings.4. The appellant contended that for goods sold at the factory gate with separately invoiced freight, the risk passed to the customer at the gate, unlike goods delivered to the customer's premises. This distinction was crucial in determining the assessable value.5. The Tribunal did not consider certain decisions citing the old Section 4 of the Act, but the High Court found relevance in a previous case where freight costs were not included in the assessable value for goods sold at the factory gate.6. The High Court emphasized the difference between VAT and excise duty assessments, stating that inclusion for one did not mandate inclusion for the other. The transaction value under the Act should be assessed independently based on ownership transfer and contract terms.In conclusion, the High Court modified the Tribunal's order, allowing the appeal without the predeposit requirement. The Court directed the Tribunal to hear the appeal on merits, emphasizing that the observations made were prima facie and should not influence the final decision.