2012 (9) TMI 600

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....e in the Balance Sheet arising out of the transportation charges/freight charges. The Commissioner (Appeals) in his Order-in-Appeal in paragraph 7 coming to the conclusion that there cannot be any demand of duty on the Respondent Assessee, has recorded the following : "7. I find that in the impugned show cause notice, demand has been raised against extra realization on account of cost of transportation, which could be revealed on examination of Annual Report and Certified Audit file, commercial invoices through which freight charges were realized, vis-à-vis transporters bills. Realization of freight charges were not reflected in statutory Central Excise Records, like, invoices under Rule 52A, where duty is being shown to have....

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....d facilitate such design, they opted for road transport instead of Railways. In this context, I find that in trade parlance, mode of conveyance is an area of option of the consignor as well as consignee to suit one's convenience for safe and secure delivery of the goods, and the appellant's opting to road transport can not come out as evidence to sustain the allegation of under-valuation by any means. However, it is a fact that extra realization on account of fact is based on record, which could not be controverted by the appellant. But whether such extra realization can be attributed to alleged depression of price is the point for decision in the instant case. In this case, DGS&D rate contract on which duty has been paid is claimed to be e....

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....ble ex-factory price, and extra realization on account of freight has come out as profit on such account, which cannot form part of assessable value, as held by the Hon'ble Supreme Court in the case of Baroda Electric Meters Ltd. v. C.C.E. [1997 (94) E.L.T.- 13 (S.C.)], followed by catena of decisions of the Tribunal, as referred to by the appellant. Therefore, demand of differential duty is not sustainable. 3. Arguing for the Revenue, Shri S.Mishra, learned S.D.R. takes us to the Grounds of Appeal. He submits that the said Assessee has realized nearly Rs. 2.00 crore from their buyers during the period, 1997-98, in excess of the actual freight which had been paid by them. It is his submission that this amount cannot be treated as pr....