2005 (7) TMI 143

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....excise. These items are, loading charge at depot and exclusive dealer discounts. 2.  The contention of the learned Counsel for the appellant with regard to the first item is that only loading charge at the factory is liable to be included and not loading charges thereafter. In support of this contention, reliance is being placed on the decision of the Apex Court in the case of Indian Oxygen Ltd. v. CCE - 1988 (36) E.L.T. 723 (S.C.). 3. As against this, the submission of the learned DR is that during the period in question, depot was liable to be treated "as place of removal" in view of the following amendment in Section 4 in 1996 :- "Place of removal" means - (i)       a factory or any other pl....

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....g to do with the manufacture as they are for delivery of the filled cylinders and collection of the empty cylinders. These charges have to be excluded from the assessable value. Insofar as the loading charges incurred for loading the goods within the factory are concerned, they are to be included in the assessable value, irrespective of who has paid for the same but the loading expenses incurred outside the factory gate are excludible. Duty of excise is a tax on the manufacture, not a tax on the profits made by a dealer on transportation". The above ruling was rendered in the contest of assessable value being fixed at the price at the time of removal from the factory. In the present case, the place of removal has shifted to the depot in ....

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....ere to sell higher quantity. The learned Counsel for the appellant is right in his contention that uniformity is no criteria for determining the deductability of a discount. The Apex Court observed as under in the case of Metal Box India Ltd., with regard to uniformity of discounts :- "13. Learned Counsel for the appellant in this connection invited our attention to the decision of the Gujarat High Court in Gujarat State Fertilizers Co. Ltd., v. Union of India & Ors. - 1980 (6) Excise Law Times 397. The Division Bench of the Gujarat High Court consisting of P.D. Desai and G.T. Nanavati, JJ, interpreting the scope of Section 4 of the Act laid down that Section 4 of the Central Excise Act does not in terms enact the trade discount in order....