TaxTMI 
TaxTMI 
2013 (7) TMI 564
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.... up on 08/02/11 and then on 21/06/11, 05/07/11 and 20/02/13 also, the case was adjourned at the request of the advocate. These appeals were filed during the year 2004 and yet to be heard on merits because the Counsel has been seeking adjournments regularly. We do not consider it proper to give any more adjournment in this matter. So the case was taken up with the help of Ld. A. R. for Revenue. 2. All the appeals arise from the same impugned order but relate to different periods as under: S. No Appeal No. Impugned order No. Period involved Duty amount involved As per adjudication order (Rs.) Penalty involved As per adjudication order(Rs) 1 E/1000/2004 53/04 (P)dt....
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....r (Appeal), Revenue has filed these appeals. For understanding the issues they are listed briefly below: - 4. Appeal No. 26/03-before Commissioner (Appeal). 4.1 Three issues were involved in the appeal:- (i) Demand on transportation charges up to the place of the buyer and unloading charges at the place of the buyer was confirmed by adjudicating authority for the reason that such charges were collected separately by issuing separate invoice. Commissioner (Appeal) relied on the decision of the Tribunal in Shasun Chemicals and Dyes Ltd reported at 2003 (58) RLT 884 and dropped the demand. (ii) Duty was demanded on items like acoustic enclosures supplied by the respondent along with DG sets, value of which was separately billed but....
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....s Erection and Commissioning. The demand has been confirmed on the ground that goods were sold only after erection and commissioning and hence these amounts are incurred in connection with sale and hence would form part of assessable value. 5. Appeal No. 02/04 before Commissioner (Appeal). In this appeal, the demand was on erection and commissioning charges which was not included in the transaction value. The demand on this count was dropped on the ground that there was no allegation in the show cause notice that DG sets were being erected at site and excise duty is payable on such D.G. sets after erection. Commissioner (Appeal) relied on the decision of the Apex Court in the case of Thermax Ltd. Vs CCE as reported in 1998 (99) ELT 48....
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....ion and commissioning charges will form part of the transaction value as defined in section 4 of Central Excise Act 1944. 8.3 We note that adjudication order alleges that freight and unloading charges were collected through separate invoices. In the grounds for appeal before this Tribunal itself an apparent contradiction is coming out. Para 2 of the appeal memorandum states that separate invoices were raised for transportation charges. Ground (a) for the appeal states that charges for transportation is not shown separately. So it is not as if the transportation charge is not known separately. The argument is that it is not indicated in the same invoice. No ground is made out that the transportation charges are far in excess of the actual....
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....nly argument given by Commissioner (Appeal) is that it is an optional item. 9.2 The decision in the case of Shriram Bearing (supra) referred to by the Commissioner (Appeals) were with reference to old Central Excise Tariff where the Tariff entry covered only bearing and not housing for bearing. In the case of Jaya Engineering (supra) the Court itself notes that the decision is applicable only prior to 19-06-97. All the other decisions are clearly with regard to bought out accessories supplied along with a manufactured item. In this case, the issue is whether the goods were bought out at all. Though such argument was raised before the adjudicating authority, he rejected it for want of any proof that the goods for bought out. Even after fa....
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....dvertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. 10.2 There is nothing in the above definition to suggest that it overrules the ruling of the Hon. Apex Court in the case of Thermax Ltd and include expenses for the service of erection and commissioning in the value of excisable goods. Excise duty is chargeable at the stage of removal of goods as it is at the stage of removal and not after its attachment to the earth. In fact, the evolution of law by imposing service tax on erection and commissioning under F....