Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/CASE LAW/2015-16/2768

Whether machine hire charges includible in assessable value of goods?

Case:-JAI BEVERAGES PVT. LTD. VERSUSCOMMISSIONER OF CENTRAL EXCISE, J & K
 
Citation:-2015 (321) E.L.T. 523 (Tri. - Del.)

Brief Facts:-  There are four appeals and two cross-objections arising out of three orders-in-appeal as detailed hereunder :
(i) Excise Appeal No. 939/2006 filed by Jai Beverages Pvt. Ltd. and Excise Appeal No. 1852/2006 filed by Commissioner of Central Excise, Jammu, both arising out of orders-in-appeal 60/2006, dated 8-2-2006 and Excise Cross Objection No. 128/2006.
(ii) Excise Appeal No. 2778/2006 filed by Commissioner of Central Excise, Jammu, arising out of order-in-appeal 166/2006 dated 28-4-2006 and Excise Cross Objection No. 188/2006.
(iii) Excise Appeal No. 565/2007 filed by Commissioner of Central Excise, Jammu, arising out of order-in-appeal 326/2006 dated 31-10-2006.
 
In the above appeals, the Revenue is challenging that portion of the orders-in-appeal which have favourably considered the respondents’ pleas relating to deduction of machine user charges incurred by them from calculating assessable value for the purpose of levy of excise duty. In the appeal filed by Jai Beverages Pvt. Ltd./appellant, is challenging that portion of the Commissioner (Appeals) order which has denied deduction of transportation expenses incurred by them, while arriving at assessable value for the purpose of excise duty.
 
Reasoning of Judgment:-  As regards machine user charges, we find that the issue is squarely covered by this Tribunal’s decision in Dhillon Cool Drinks and Beverages v. CCE, Jalandhar, reported in 2004 (64) RLT 237 (Tribunal) = 2005 (182) E.L.T. 57 (Tribunal). Para 4 of the said judgment reads as follows:
 
“4.We have considered rival submissions. We find that it is possible to dispose of all these appeals only on the issue of, whether the deductions claimed in respect of Machine Hire Charges and Repair and Maintenance Charges of PMX machine are permissible. Reasoning adopted by the Commissioner for disallowing the above two deductions is that, PMX machine is an extension of the manufacturing activity as the machine performs certain processes like carbonation etc. on the syrups in the Bag-in-Box and thus converts the syrup into consumable form i.e. aerated water, although he has categorically held that the duty on Bag-in-Boxes has been fixed to be discharged at the time of clearance of the same by the manufacturer, we find that the issue in dispute is no longer res integra as it has been settled by Tribunal in the case of Pepsico India Holdings (P) Ltd. v. CCE, Mumbai, 2004 (163) E.L.T. 478 (T.-Del.), wherein it has been held that lease charges on dispensing machine is not includible in the assessable value of syrup since the sale of syrup and leasing of dispensing machine are two different activities and what is included is any additional amount charged as price by reason of or in connection with the sale of the goods under assessment and no amount charged in connection with or by reason of sale of other goods or provision of other services. In that case, the Tribunal held that the rental on the dispensing machine leased out does not form part of the assessable value of the syrup. Following the ratio of the above decision, which is in turn based upon the Apex Court decision in Collector of Central Excise v. Indian Oxygen Ltd., 1988 (36) E.L.T. 730 (S.C.), which is directly applicable to the facts of the present case, we hold that the appellants are entitled to deduction of repair and maintenance charges for PMX machine and rental charges for the same from the assessable value.”
 
Para 11 of the Tribunal’s decision in Pepsico India Holdings Pvt. Ltd. v. CCE, Mumbai [2004 (163) E.L.T. 478 (Tri. - Del.)], relied upon in the foregoing paragraph reads as under :
 
“4.We find no authority for the inclusion of the lease charges on the dispensing machine in the assessable value of syrup. Sale of syrup and leasing of dispensing machine are two separate activities. Considerations for them are also separate. There is no warrant in law for the inclusion of the consideration for different activity in the assessable value of excisable goods, definition of ‘transactions value’ in the new section notwithstanding. It is clear from a perusal of that definition that what is included is any additional amount charged as price, by reason of or in connection with the sale of the goods under assessment and no amounts charged in connection with or by reason of sale of other goods or provision of other services. Therefore, there was no justification for inclusion of lease charge also.”
 
Following the ratio of the above decisions, we do not find any justification for denying the benefit of deduction on account of machine user charges incurred by the respondent/assessee.
 
As regards the issue relating to transportation charges, the appellant/assessee is challenging that portion of the order-in-appeal under which deductions claimed by them in respect of transportation charges were denied to them on the ground that the appellant had failed to prove that amount charged as freight was equalized freight based on accepted principle of accounting. The learned Commissioner had held that, a manufacturer must produce the relevant documents which could prove that the freight was charged on equalized basis based on accepted principle of accounting. It further observed that, the appellants had failed to produce requisite evidence on the basis of which they could have claimed that the expenses borne towards transportation represented the equalized freight. It has further been held that, the view taken by the adjudicating authority was correct, while disallowing the deduction claimed by the appellant on account of transportation/freight charges. The learned counsel for the appellant has, however, stated that, the relevant documents and invoices had been produced before the concerned adjudicating authority, even though the same have not been considered while passing the order. He further places reliance on the following decisions:
 
(i) Escorts JCB Ltd.v. CCE, Delhi,reported in 2002 (53) RLT 1 (S.C.) = 2002 (146) E.L.T. 31 (S.C.); in which it was held, more particularly, in para 11, as under :
 
“The assessee also referred to a decision reported in 2002 (49) RLT 506 - Associated Strips Ltd. & Anr. v. CCE, New Delhi. It is a decision of CEGAT. Considering several decisions of different Courts and the terms of the contract between the parties, it was held that sale of goods had taken place at the factory gate and therefore the place of removal was not the premises of the buyer. In view of the provisions of Section 23 and Section 39 of the Sale of Goods Act, 1930, it was found that goods to be treated as delivered to buyer and property and possession of the goods passed on to buyer when the goods were handed over to transporter. In such a case element of freight and transit insurance were not to be included in the normal value of the goods. We approve of the view taken by the CEGAT.”
 
(ii) Motorola India Pvt. Ltd. v. CCE, Bangalore,reported in 2007 (209) E.L.T. 86 (T), in which it was held in para 4 as under :
 
“We do not agree with the lower authorities’ view that the judgments are distinguishable. Merely because the details have not been mentioned in the Excise Invoices that by itself will not be a ground for the Revenue to add the freight charges in the assessable value. This very issue has been discussed in all the judgments. The impugned order is not legal and proper and the same is set aside by allowing the appeal with consequential relief, if any.”
 
A perusal of the impugned order relating to the admissibility of transportation charges as dealt with by the Commissioner (Appeals) indicates that the relevant records and invoices having a direct bearing on this issue produced by the assessee, have not been gone through. It is, therefore, appropriate to remand the matter for reconsideration of this issue in the light of the relevant material that might have been produced before the concerned authorities.
 
For the foregoing reasons, Appeal Nos. 1852/2006, 2778/2006 and 565/2007 filed by the Revenue are dismissed.
 
As regards Appeal No. 939/2006 filed by the appellant/assessee, we set aside only that portion of the order which relates to transportation charges and remit the matter to the Commissioner (Appeals) for reconsideration of that issue on the basis of the relevant material that may have been adduced by the appellant/assessee and in the light of the decisions in Escorts JCB Ltd. v. CCE, Delhi (supra) and Motorola India Pvt. Ltd. v. CCE, Bangalore (supra) relied upon by them. This appeal is accordingly allowed by way of remand.
 
Decision:-Assessee’s appeal allowed.
 
Comment:-  The substance of the case is that for purpose of Assessable Value, Machine charges received for leasing of machine by assessee while manufacturing syrup shall not be included in assessable value u/s 4 of Central Excise Act, 1944. It was concluded that the sale of syrup and leasing of dispensing machine are two separate activities. Considerations for them are also separate. There is no warrant in law for the inclusion of the consideration for different activity in the assessable value of excisable goods.

Prepared By: Meet Jain
 

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