TaxTMI 
TaxTMI 
2024 (7) TMI 545
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....to make payment the order stands cancel and the appellant charges 3% of the dealer's margin as cancellation fee; such cancelled vehicles under POS form "a Pool"; any dealer desirous of lifting any vehicle from the pool requires to pay 5% of the dealer's margin as pool lifting charges; there are some instances where the dealers could not lift the vehicles from the pool, due to lack of funds etc, are required to pay cancellation charges in addition to pool lifting charges; in such cases the appellants retained the pool lifting charges collected from the dealer; the appellants accounted these charges recovered under the Head "Other Income". On the basis of audit conducted, the department entertained opinion that a pool cancellation charges, pool lifting charges, penalty on dealers and cancellation charges are includible in the assessable value of the motor vehicles. Series of show cause notices, dated 27.11.2008, 22.09.2009, 29.04.2010, 04.05.2011 and 30.04.2012, covering the period November 2003 to March 2012, were issued to the Gurgaon and Manesar Units of the appellants. Vide the impugned order dated 27.08.2012, Learned Commissioner confirmed the duty of Rs. 3,83,03,480,on pool lif....
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....added to the assessable value. He relies on the following cases: CCE, Indore Vs. Grasim Industries Ltd. 2014 (304) ELT 310 (Tri.-Del.) CCE, Mumbai-III Vs. Bombay Oxygen Corporation Ltd. 2016-TIOL- 583-CESTAT-MUM. CCE, Delhi-III Vs. Innovative Tech Pack Ltd. 2017 (358) ELT 409 (Tri.-chan.) Goyal MG Gases Pvt Ltd Vs. CCE 2014 (309) ELT 327. Nova Iron and Steel Ltd. Vs. CCE, Raipur 2016 (343) ELT 660 (Tri.-Del.) CCE, Indore Vs. Grasim Industries Ltd. 2018 (360) ELT 769 (SC) 4. Learned Counsel submits further that the buyer and seller in the instant case are not related and the transaction is on the principal and principal basis; pool lifting charges are not additional consideration for the transaction; they are only charges recovered for expeditious delivery of the motor vehicles; it is not a compulsion for the buyer; the dealer pays the charges only if he wishes to get vehicles out of turn; the charges are part of dealer's commission and is not passed on to the ultimate customer as the MRP of the vehicles is fixed by way of an agreement; VAT department has not raised any objection regarding the transaction. Learned Counsel subm....
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.... Products Ltd.; Ram Decorative & Industries Limited; Jindal Praxair Oxygen Co. Ltd.; Praxair India Ltd; Vimlachal Print & Pack Pvt Ltd & Shri Rashminbhai Shah; Innovative Tech Pack Ltd and Goyal MG Gases Pvt Ltd is not correct as the facts of the cases are different. 7. Learned Authorized Representative relies on the following cases: Pepsi Foods Ltd. Versus COLLECTOR OF C. EX., CHANDIGARH-2003 (158) E.L.T. 552 (S.C.)- Rajasthan Prime Steel Processing Center Pvt. Ltd. Versus COMMISSIONER OF C. EX. & CGST, ALWAR 2022 (379) E.L.T. 614 (Tri. Del.) affirmed by the Hon‟ble Supreme Court 2022 (379) E.L.T. 552 (S.C.). Oil And Natural Gas Corporation Ltd. 2015 (320) E.L.T. 614 (Tri. Ahmd.) affirmed by the Hon‟ble Supreme Court. 2015 (320) E.L.T. A255 (S.C.) COMMISSIONER OF C. EX., BHUBANESHWAR-II Versus IFGL Refractories Ltd.2005 (186) E.L.T. 529 (S.C.) VICTORY ELECTRICALS LTD.-2013 (298) E.L.T. 534 (Tri. LB) COMMISSIONER OF C. EX., INDORE Versus Man Industries (India) Ltd.-2012 (276) E.L.T. 286 (Tri. Del.). 8. Heard both sides and perused the records of the case. Brief issue involved in this case as to whether pool lif....
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....r 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. In the instant case, M/s MSIL is charging additional amount over and above the price actually paid or payable for the goods ie. cars when sold. There is no reason that Mis MSIL should charge any amount of lifting of such cars as they are helping M/s MSIL to reduce their inventory of finished goods. It appears that M/s MSIL has devised this scheme to get extra amount from their dealers though debit notes so that they can avoid paying any Central Excise duty on them. There is no reason that the CE duty should not be levied on this amount. Thus, this amount is required to be included in the value of the excisable goods in order to arrive at the correct transaction value of the said goods. Therefore, the demand raised on this issue is ....
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....hicles to the dealers. We find that Ld. Commissioner has rightly held that this is an additional consideration flowing back to the appellants. 12. Learned Counsel for the appellants submits that pool lifting charges do not form part of the assessable value and is an independent transaction. We are not inclined to accept such an argument as the charges are levied only with reference to the vehicles that are lifted by some dealers from the "pool". In view of our discussion as above, we find that it is a consideration received in respect of the some vehicles sold by the appellants. It is not the case of the appellants that the pool charges are charged irrespective of the sale of vehicles and are not related to the transaction. Therefore, it is apparent that the pool charges relate to the transaction of sale of additional vehicles, that the appellant has entered into with the dealers. We find that, as rightly held by the Commissioner, as per Section 4 of Central Excise Act, 1944, the „transaction value' means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, o....
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....spires from the business arrangement between the appellant, Honda India and the buyers that the appellant received some amount from the buyers of scrap and some amount from Honda India for the value of the auto parts and there is no good reason as to why this amount received by the appellant from Honda India should not be included in the transaction value of the goods. 17. The contention of the appellant that the amount cannot be included in the transaction value since the consideration must flow only from the buyer to the seller of goods, in view of the business arrangement arrived at in the present case, cannot be accepted. 18. The decision of the Tribunal in Haryana Drinks Pvt. Ltd. v. Commissioner of C. Ex., New Delhi [2000 (121) E.L.T. 718 (Tribunal)] will not come to the aid of the appellant as that was a case on entirely different facts. The issue that arose was regarding reimbursement of expenditure for advertising, marketing and sales promotions. This amount was sought to be added to the assessable value of soft drinks for the purpose of excise duty. The Tribunal held that this was not a consideration flowing directly or indirectly from the buyer of soft ....
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....be based on the aggregate of such price and the amount of the money value of any additional consideration flowing directly or indirectly from the buyer to the assessee." 22. This rule also talks of additional consideration flowing directly or indirectly from the buyer to the assessee. In view of the peculiar nature of the business arrangement between the appellant, Honda India and the buyers of auto parts, it is clear that the amount received by the appellant from Honda India has flown indirectly from the buyers. 15. We find that learned Commissioner sustains the invocation of extended period stating that the short payment of duty was not brought to the knowledge of the Department by the appellants and it has seen the light of the day only after the audit has visited the factory premises of the appellant. Learned Counsel for the appellants, on the other hand, submits that the appellants were regularly filing the returns and were regularly subjected to audits right from inception; audit were supplied with financial documents like balance sheet etc. from time to time and therefore extended period cannot be invoked. We are in agreement with the contention of the appellants....