TaxTMI 
TaxTMI 
TaxTMI 
2013 (10) TMI 842
X X X X Extracts X X X X
X X X X Extracts X X X X
....s not being paid. Accordingly, a show cause notice dated 01/03/2012 was issued demanding Central Excise duty of Rs.8,02,17,457/- on the duty short paid on freight charges for the period February 2007 to December 2011. The said notice was adjudicated vide the impugned order and the demands were confirmed along with interest thereon and also imposing equivalent amount of penalty. Aggrieved of the same the appellant is before us. 3. The learned counsel for the appellant submits that they have three types of sales undertaken by them. In some cases, as per the contracts entered into with the customers, the delivery is ex-works i.e., at the factory gate and the buyers arrange for the transportation of the goods from the factory to their premise. In such cases excise duty liability is discharged on the ex-factory price and there is no dispute with respect to these transactions. Then there are some transactions where as per the contracts, the appellant has to deliver the goods at the premises of the buyers. In such cases, the appellant incurs the transportation charges from the factory to the buyer's premises and in the invoices a lump sum amount is charged for the sale for the goods whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the appellant to terms. 5. We have carefully considered the submissions made by both the sides. The period involved in the present case is from February 2007 to December 2011. Therefore, provisions of new Section 4 introduced w.e.f. 01/07/2000 would apply. Section 4 of the Central Excise Act, 1944 effective from 01/07/2000 reads as follows: "4. Valuation of excisable goods for purposes of charging of duty of excise.- (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall. (a) in a case where the goods are sold by the assessee, for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, be the transaction value; (b) in any other case, including the case where the goods are not sold, be the value determined in such manner as may be prescribed. Explanation. - For the removal of doubts, it is hereby declared that the price-cum-duty of the excisable goods sold by the assessee shall be the price actually paid to him for th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising 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." 6. From a plain reading of the above provision, it is clear that the assessable value has to be determined in respect of each removal of the excisable goods and the value on which the duty is liable to be paid in a case where the goods are sold by the assessee for delivery at the time and place of removal and the assessee and the buyer are not related and the price is the sole consideration for sale, is the transaction value. Therefore, the price for levy of excise duty is the transaction value for delivery of the excisable goods at the time and place of removal. As per the definition of 'place of removal' it can be either the factory or the warehouse or any other pla....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... old Section 4 which was in force prior to 01/07/2000. Under the old Section 4 there was no concept of 'transaction value' and the 'place of removal' was either the factory gate or the depot and the excise duty liability was required to be discharged on a deemed value at which the goods or the like goods were normally sold. w.e.f. 01/07/2000, the old Section 4 was substituted by a new provision of law which did away with deemed sale price and instead introduced the concept of 'transaction value' in respect of each removal of the excisable goods. Therefore, each removal of excisable goods has to be seen separately to determine the transaction value and the assessable value. The new Section 4 also provided that 'place of removal' could be even at the customer's premises. Therefore, the decisions rendered in the context of old Section 4 are no longer relevant or applicable in respect of transactions undertaken after 01/07/2000 when the provisions of new Section 4 came into existence. 6.2 In the case of the Tribunal decisions relied upon by the appellant, those decisions also rely upon the decisions of the hon'ble apex Court for the period prior to 01/07/2000 under the provisions of o....