TaxTMI 
TaxTMI 
2016 (10) TMI 38
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....delivery was different than the place of removal and therefore, the cost of transportation from the place of removal to the place of delivery was required to be excluded for determination of value in accordance with Rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. The appellants did not do this and paid more duty than required to be paid under the law, which resulted in excess refund under notification No.32/1999. Regarding time-bar the lower authority has held that the appellants had failed to adduce any evidence of duty. No such evidence has been adduced in the appeal and accordingly the plea has to be rejected. In view of the above, the impugned order is upheld and the appeal is rejected." 2. Shri K.K.Banerjee (Advocate) appearing on behalf of the appellant argued that appellant is manufacturing various categories of Ferro-Alloys falling under Central Excise Tariff Heading (CETH) 7202.00 and are also availing area based exemption under Notification No.32/99-CE dated 08.07.1999. That officers of Anti-Evasion Unit Central Excise, Guwahati visited the factory cum office of the appellant on 14.12.2004. That after a detailed investigation....
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....taking place at the factory gate of the appellant as sales tax is paid at the factory gate. Learned AR also brought to the notice of the bench Purchase Order No.PO/0011 and PO/0020 both dated 04.08.2003, received by the appellant from M/s. Oswal Minerals, which convey that insurance of goods is on account of the buyer. That all the payments against deliveries are received by the appellant in advance. That as per purchase order dated 22.09.2003 from M/s. Jay Iron Store submitted by the appellant any difference in freight is required to be adjusted by adding or subtracting from the agreed upon prices. That as per copy of another relied upon purchase order dated 07.05.2004 from M/s. HBR Sales Pvt. Ltd. sales tax is included in the rate which gives indication that sales takes place at the factory gate. Learned AR relied upon larger Bench case law of Associated Strips Ltd.-vs.-Commr. Of C.Ex., New Delhi[2002(143)E.L.T.131(Tri.-Del.) by reading out paragraph-17 of the relied upon case law. He also relied upon the following case law where non-inclusion of freight was decided when assessee M/s. Guwahati Carbon Ltd. was also availing area based exemption Notification No.32/99-CE, CCE-vs.-Gu....
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....ed 04.08.2003, from M/s. Oswal Minerals, Bangalore that price indicated is Ex Our Works of M/s. Oswal Minerals but insurance of goods is also indicated in the said orders to be on account of the buyer. Another purchase order dated 22.09.2003 of M/s. Jay Iron Store, New Delhi convey the price is subject to freight variations and buyer can seek deductions on account of actual freight incurred. This clause in the purchase order indicate that sale is at the factory gate as appellant can stake claim on the excess freight if recovered by the buyer from the payments already made. The entire payment is made by the buyers in advance. Purchase order dated 07.05.2004 from M/s. HBR sales Pvt. Ltd. convey that agreed rates are inclusive of sales tax. It is not clear whether the sales tax applicable is at factory gate or at the place of destination. For considering a sale on FOR basis following elements have to be satisfied in appellant s case. (i) The invoice price is inclusive of freight. (ii) Ownership of the goods lies with the appellant till the goods are delivered at the footsteps of the buyers and transit insurance is also borne by the appellant because appellant need to secure the good....
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.... interest in the goods even though title to the goods had already been passed to the buyer at the factory gate. In the absence of any of these contentions it is seen that the Tribunal applied the general rule that risk follows property . Since the seller was found insuring against risk of loss or damage of the goods in transit, it was held that the seller continued to be the owner of the goods till it reached the buyer s premises. In Prabhat Zarda, a decision rendered by the Larger Bench, the issue referred for consideration was whether in a case where the ownership of the excisable goods remained with the manufacturer up to the place of the buyer from where the said goods were delivered to the buyer, what would be the place of removal for the purpose of Clause (iii) of Section 4(4)(b) of the Central Excise Act. In Paragraph 8 of the order it is noted that it was an admitted position that there was no factory gate sale in the concerned case. The goods were transported on account of M/s. Prabhat Zarda Factory Ltd. the manufacturer to the destination of the buyer through the transport agency. The goods were stored on behalf of the seller in the godown of the transport agency at the d....
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.... the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purposes of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. 19.We may also refer to the provisions contained under Section 39 of the Sale of Goods Act which refers to the legal effect of delivery of the goods to a carrier by the seller. It is provided that where, in pursuance of a contract of sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, is prima facie deemed to be a delivery of the goods to the buyer AIR 1966 Patna 346. Admittedly, in the present cases after appropriation of the goods to the contract they were delivered to the carrier as per terms of the contract. Therefore, delivery to the carrier has to be taken as delivery to buyer. Revenue has no case that the goods are not sent to the buyer through carrier. On the other hand, as mentioned earlier, the only contention raised is that since the insurance of the goods in transit has....