Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/Case Law/2014-15/2395

Whether equalized freight separately charged to be included in the assessable value ?

Case:-  COMMISSIONER OF CENTRAL EXCISE, ALLAHABAD Vs CHANDRA METALS PVT LTD
 
Citation:- 2014-TIOL-797-CESTAT-DEL
 
Brief facts:-To appreciate the issue, it is necessary to go through the brief facts of the case. The appellants manufactured various varieties of copper wires classifiable under chapter 74 of the first schedule to the Central Excise Tariff Act, 1985. It was alleged by the Revenue through show cause notices dated 19.8.2003 and 17.11.2007 based on records that the appellants had entered into contracts with their respective buyers for delivery of goods at the agreed prices on FOR destination basis, but the freight charges were not shown in the respective invoices. The appellants raised separate bills/ invoices showing freight therein. However, it was alleged that this freight being part of the transaction value was not allowed to be deducted from the assessable value in terms of section 4 of the Central Excise Act, 1944 read with Rule 5 of Central Excise Valuation (Determination of Price of Excisable goods) Rules, 2000 as it existed during the relevant period. It was further alleged that the appellants did not bring these facts to the notice of the department with an intent to evade payment of duty. Demands of Central Excise duty amounting to Rs.3,52,436/- and Rs.69,440/- respectively, alleged to have been short paid on the clearances of goods removed by the appellant in the above manner under proviso to section 11A(1) of Central Excise Act, 1944 alongwith interest under section 11AB and proposal of imposition of penalty under section 11AC of the Act read with Rule 25 of Central Excise Rules, 2002 were issued.
 
Appellant’s contentions:-Following grounds of appeal have been taken by the department:
 
(a) Commissioner (Appeals) while concluding the case clearly covered under section 4(1)(a) and not section 4 (1) (b) did not deemed to have considered clearances in the case of contract and records of transaction and clearly established that sales were made on FOR destination basis. It was further stated that the goods were sold for at place (buyer's premises) other than the place of removal.
 
(b) Commissioner (Appeals) has not taken into consideration the facts of exclusion of cost of transportation under Rule 5 is not absolute but conditional and was subjected to fulfilment of laid requirements. Deductions of transportation were available to the goods of actual cost of transportation.
 
(c) Commissioner (Appeals) has also not taken into consideration the fact that equalized freight was not actual transportation cost and was accordingly excluded from the assessable value of the goods.
 
(d) It also stated that the Commissioner (Appeals) has not taken into consideration the Board's circular F.No.354/1/2008-TRU dated 30.6.2008 where it has been clarified that exclusion is permissible only for cost of transportation so charged from his buyer and if there was a system pricing and sale of unit price included and collected freight for delivery at factory gate or elsewhere no freight will be permissible. Commissioner (Appeals) has not appreciated the fact that transportation could not be shown on actual basis on every invoice.
 
The judgement quoted by the Commissioner (Appeals)  have also been contested on the ground that the department has not accepted these judgements and have challenged these judgements.
 
Respondent’s contentions:- Counsel of the party has mainly relied upon the judgement of the Tribunal in the case of CCE, Nagpur vs. Ramakrishna Electricals Pvt. Ltd.- 2011 (272) ELT 149 (Tri.-Mum).
 
Reasoning of judgment:- Ld. Counsel of the party has mainly relied upon the judgement of the Tribunal in the case of CCE, Nagpur vs. Ramakrishna Electricals Pvt. Ltd.- 2011 (272) ELT 149 (Tri.-Mum) wherein it has been held that:
 
"Supply of transformer to State Electricity Boards, freight charges, inclusion of - Contract clearly indicates ex-works price, freight charges on equalized basis mentioned separately - Merely because Sales tax paid on amount inclusive of freight charges, it cannot be concluded that sale taken place at destination – Clauses relating to testing etc., indicating that property transferred at factory gate itself – It has been decided by Supreme Court in the case of Accurate Meters Ltd. 2009 (235) E.L.T. 581 (S.C.) = 2009-TIOL-31-SC-CX-LB and also the Tribunal in the case of Majestic Auto Ltd. 2003 (160) E.L.T. 541 (Tribunal) = 2003-TIOL-23-CESTAT-DEL that freight charges cannot be included in the assessable value - No infirmity in impugned order."
 
 Para 5.1 and 5.2 of the judgement are reproduced for ready reference:-
 
5.1 The Hon'ble Apex Court in the case of Commissioner of Central Excise v. Accurate Meters Ltd., 2009 (235) E.L.T. 581 (S.C.) = 2009-TIOL-31-SC-CX-LB considered a similar situation wherein the goods were supplied by the assessee to the State Electricity Boards and two separate contracts were entered into, one for sale of meters and another for transportation and transit insurance thereof. As per the terms of the contract, the assessee was bound to transport the goods from the factory-gate to the place of State Electricity Boards at the rates specified in the tender. In the said case the Apex Court held that the place of removal remains the factory-gate and the cost of transportation from the place of removal to the place of delivery cannot be included in the assessable value even though the cost of transportation has been calculated on average basis and not on actual basis. The ratio of the said judgment apply squarely to the facts of the present case.
 
5.2 Similarly, this Tribunal in the case of Majestic Auto v. CCE cited supra, had held that the equalised cost of freight shown separately in the invoices cannot be included in the assessable value even after 1-7-2000 when the place of removal remains the factory-gate.
 
In view of above cited judgement of the Tribunal, it clearly comes out that cost of transportation from the place of removal to the place of delivery cannot be included in the assessable value even though cost of transportation has been calculated on average basis and not on actual basis. Same finding was reflected by the Tribunal in the case of Majestic Auto Ltd. cited supra. We have also perused board's circular wherein it has been stated that the deductions are permissible only for the actual cost so collected from his buyers. However, with reference to the judgement of Supreme Court in the case of Accurate Meter - 2009 (275) ELT 585 (SC) = 2009-TIOL-31-SC-CX-LB and the Tribunal's judgement in the case of Majestic Auto, this issue has already been decided allowing deduction of equalized freight also.
 
Decision:- The appeal is rejected.
 
Comment:- The analogy of the case is that the cost of transportation from the place of removal to the place of delivery cannot be included in the assessable value even though cost of transportation has been calculated on average basis and not on actual basis in view of the decision of the Tribunal in the case of Majestic Auto Ltd.
 
Prepared by: Monika Tak

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com