TaxTMI 
TaxTMI 
2024 (1) TMI 1534
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....ammon India Limited to 'M/s Transrail Lighting Limited' in pursuance to the NCLT order dated 30th March, 2017. As regard appeal he submits that there was a clear understanding in the contract with the customers that a fixed rate of transport shall be charged in the sale invoices of excisable goods. Therefore, at times the actual freight is lesser than the fix rate of freight charged to the customer. 2.1 He further submits that this excess freight as compared to the actual one is not a consideration towards the sale of the goods but the same is profit on account of transportation only. Therefore, the same is not includable in the assessable value. He placed reliance on the following judgments: * Baroda Electric Meter- 1997 7 TMI 126 SC * Kashyap Sweetners-2023 7 TMI 1111 * Kashyap Sweetners-2023 10 TMI 224 TRI AHD * Indo Amines Ltd 2018 11 TMI 489 * Mercedez- Benz India 2009 11 TMI 303 TRI MUM * Mercedez- Benz India 2010 3 TMI 300 HGC BOM 2.2 He further submits that the Revenue has relied upon the judgment of Mercedes Benz India of the Hon'ble Bombay High Court. In this regard it is his submission that the matter was not fi....
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....ing order was passed: "4. We have carefully considered the submissions made by both sides and perused the record. We find that on the identical issue, in the same set of facts, in the appellant's own case, this Tribunal vide Final Order No. A/11559-11561/2023 dated 24.07.2023 held that excess amount of freight collected from the customers is profit on account of transportation and not part and parcel of the value of the goods 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....
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....d to the actual. He submitted a chart which is reproduced below:- Year Freight Excess payment to appellant considered in SCN. Freight short payment to appellant by the customers Net Excess/ short recovery of freight April 2011 to October 2011 43,06,483/- -35,64,561/- 7,41,922/- November 2011 to March 2012 33,97,141/- -30,13,955/- 3,83,186/- Total 77,03,624/- -65,78,516/- 11,25,108/- He submits that despite the clear figures given above, the Adjudicating Authority has not considered the transactions where the lesser freight was collected from the customers. It is his submission that overall the demand should be on the net difference of excess freight and lesser freight collected from the customers. 3. Shri Rajesh Nathan, learned Assistant Commissioner, (AR) appearing for the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the record. We find that limited issue to be addressed is whether the excess paid freight as compared to the actual should be included in the transaction value for the purpose of charging excise duty. T....
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....le. The impugned order is set-aside and the appeals are allowed." 4.2 Similar issue was considered by CESTAT Mumbai in the case of Indo Amines Ltd (Supra) wherein even after considering Mercedes Benz decision passed the following order: "4. We find that the decision of the Hon'ble Supreme Court in re Baroda Electric Meters Ltd has laid down the principle that 'freight' has nothing to do with the activity of manufacturing which is the object of taxation under Central Excise Act, 1944. This decision has been followed by the Tribunal in IComm Tele Ltd v. Commissioner of Central Excise, Hyderabad [2010 (251) ELT 103 (Tri-Bang)], Commissioner of Central Excise, Vadodara v. Amod Industries [2008 (229) ELT 713 (Tri-Ahmd)], and Commissioner of Central Excise, Salem v. WS Industries [2007 (213) ELT 413 (Tri-Chennai)] all pertaining to the period after amendment of section 4 of Central Excise Act, 1944. 5. In re JCT Ltd, the addition approved by the Tribunal was that of 'travel insurance', in re Mercedes Benz (I) Ltd and in re Saraswati Air Products Ltd approval was accorded to adding of excess recovery of 'road delivery charges' while in re AB Mauri India Pvt Ltd approv....