2018 (10) TMI 945 - AT - Central Excise

Appellant's Claim for Refund Denied Due to Inclusion of Outward Freight in Transaction Value

The appellant was deemed eligible for a refund of education/higher education cess under Notification 56/2002-CE, following a Supreme Court precedent. ... Exemption/refund of education/higher education cess paid - N/N. 56/2002-CE dated 14/11/2002 - Held that:- The issue stands settled by the Hon’ble Supreme Court in SRD Nutrients Pvt. Ltd. vs. CCE, Guwahati [2017 (11) TMI 655 - SUPREME COURT OF INDIA], where it was held that the assessee is eligible for such refund which is paid alongwith the excise duty once the excise duty itself was exempted - refund allowed. Valuation - inclusion of outward freight up to the place of delivery of their finished goods in assessable value - Held that:- The impugned order records that the appellant have not produced anything on record which would show that they had cleared the goods from the factory gate to a warehouse, any other premises, a depot, consignment agents premises etc. from where such excisable goods were sold - Admittedly, the goods sold by the appellant delivered at the buyers premises will not make the place of removal as buyers premises. Tthere is no justification for the appellant to consider the assessable value with inclusion of freight element after the goods were sold/removed from the factory. As such, the question of paying duty on such value addition to be covered by the exemption under Notification 56/2002-CE does not arise - reliance placed in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [2015 (10) TMI 613 - SUPREME COURT]. Appeal allowed in part. Issues:1. Eligibility of the appellant for exemption/refund of education/higher education cess under Notification 56/2002-CE.2. Valuation of excisable goods manufactured and cleared by the appellant.Analysis:Issue 1: Eligibility for Exemption/Refund of CessThe dispute revolved around the eligibility of the appellant for exemption/refund of education/higher education cess paid on the goods manufactured and cleared under Notification 56/2002-CE. Both parties agreed that the matter was settled by the Supreme Court in a previous case. Following the Supreme Court's ruling, it was established that the appellant was eligible for the refund of cess paid along with excise duty once the duty itself was exempted. Consequently, all appeals related to this issue were decided in favor of the appellant based on the Supreme Court's precedent.Issue 2: Valuation of Excisable GoodsThe second issue concerned the valuation of excisable goods manufactured and cleared by the appellant. The appellant included outward freight in the transaction value of their final products, claiming the goods were sold on a Free on Rail (FOR) basis. However, the Revenue contended that the goods were sold at the factory gate, and the freight component should not be included in the transaction value. This inclusion of freight led to the appellant being deemed ineligible for a refund under Notification 56/2002-CE. The Revenue sought to deny refunds and recover previously sanctioned amounts.Upon review, it was noted that the statutory definition of 'place of removal' under the Central Excise Act indicated that the factory, warehouse, or premises of a consignment agent could be considered as the place of removal. The appellant argued that the goods were sold on an FOR basis, making the delivery point to the buyer the place of removal. The Appellate Tribunal referred to a Supreme Court decision which clarified that the buyer's premises could not be the place of removal for excisable goods. The Tribunal held that the appellant failed to demonstrate that goods were cleared from a location other than the factory gate. Consequently, the inclusion of the freight element in the assessable value post-sale was deemed unjustified. The appellant's claim regarding the assessable value with the freight element was deemed unsustainable, and the duty on such value addition was not applicable under the exemption.In conclusion, the appellant succeeded in their entitlement to a refund claim for education/higher education cess under Notification 56/2002-CE. However, regarding the transaction value, the appellant did not succeed due to the lack of evidence supporting the inclusion of the freight element. Other issues raised in the appeals were not pursued further. All appeals were disposed of accordingly.