TaxTMI 
TaxTMI 
2023 (10) TMI 224
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.... goods, appellant in addition to value of the goods, charged transportation charges as per the pre-determined amount to their customers. It is observed that at times the actual amount of freight paid to transporters is less than the amount of freight collected from the customers. It is also the case whether the freight paid to transporters is higher than the pre-determined and collected from the customers. The case of the department is that the excess freight collected as compared to the actual freight paid to the transporters should be included in the assessable value and excise duty should be discharged on the said difference. Accordingly, the show cause notice was issued and by adjudication the demand was confirmed. Learned Commissioner ....
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....ds and thereby not included in the assessable value. The said decision is reproduced below:- "The issue involved in the present case is that whether the excess amount collected from the customers over and above the actual freight is liable to be added in the assessable value/ transaction value for the purpose of charging excise duty or otherwise. 2. Shri Mehul Jiwani, learned Chartered Accountant appearing on behalf of the appellant submits that firstly, the freight as a whole in not includable in the transaction value from the place of removal to place of delivery. In support, he placed reliance on the following judgments:- (a) M/S Ispat Industries Limited 2015 (324) E.L.T. 670 (S.C.) (b) GP Petroleums Limited 2019 (5) TMI 1018 CES....
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....unit, in their favour and the said order has not been reviewed by the department and thus attained finality. Thus, department cannot be permitted to take contrary stand in the subsequent cases. In this support, he placed reliance on the following cases:- (a) Surcoat Paints (P) Limited - 2008 (232) ELT. 4 (S.C.) (b) Suntrack Electronics (P) Limited - 2003 (156) E.L.T. 163 (S.C.) (c) Jayaswals Neco Limited - 2006 (195) E.LT. 142 (S.C.) (d) Birla Corporation Limited - 2005 (186) E.L.T. 266 (S.C.) 2.3 Without prejudice he further submits that there is not only cases of excess recovery of freight but there are cases where the appellant have paid excess freight and collected from the customer the lesser amount of freight as compared to ....
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....erever freight actually paid was less than the amount collected by way of freight and transportation charges the difference was appropriated by the appellant and, therefore, the same would be a part of the assessable value. In our opinion, the Tribunal proceeded on an incorrect premise. It was clearly held in Indian Oxygen Ltd. v. Collector of Central Excise - 1988 (36) E.L.T. 723 (S.C.) = 1988 (Supp.) SCC 658, that the duty of excise is a tax on the manufacturer and not a tax on the profits made by a dealer on transportation. In view of that decision, the view taken by the Tribunal cannot be sustained. 2. Consequently, the appeals are allowed and the impugned judgment of the Tribunal is set aside." 5. As held in the above judgment by t....