Savita Oil Technologies Ltd. Vs C.C.E. & S.T. (CESTAT Ahmedabad)
Held that buyer’s premises cannot, in law, be a “place of removal” under Section 4. Demand duty thereon is unsustainable in law.
Facts-
The appellants are engaged in manufacture of excisable goods. During the scrutiny of their records, it was noticed that the appellants were recovering transportation/ freight from their buyers and mentioning the same separately on the correspondence invoices/ bills. The appellant were not including the said freight collected from the buyer in the assessable value of the goods for the purpose of payment of duty. The agreement entered by the appellant with the buyers prescribed the terms as FOR destination. However, in all documents the value of goods and the amount of freight was separately indicated. Revenue was of the view that the amount of freight collected from the buyers should be included in the assessable value of the goods as the delivery was at the premises of the buyer and hence the place of removal would be the premises of the buyer.
Revenue was of the opinion that since freight is being collected along with the value of goods, the valuation of the goods cannot be done under sub section (1) of Section 4 of Central Excise Act, 1944. Revenue invoked Rule 6 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, which provides the valuation of excisable goods where price is not the sole consideration. The revenue treated freight amount collected by the appellant from the buyers as additional consideration. Notice demanding Central Excise duty was issued to the appellant and confirmed by the impugned order.
Conclusion-
Held that as per judicial ruling of the Hon’ble Apex Court in the case of Roofit Industries the buyer’s premises cannot, in law, be a “place of removal” under Section 4. In this matrix of facts, the decision of Commissioner holding buyer’s premises as “place of removal” cannot be upheld. The impugned order upholding the demand of duty is therefore set aside. Since the demand of duty is set aside, the demand of interest as well as penalty cannot be sustained.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
This appeal has been filed by M/s Savita Oil Technologies Limited against confirmation of demand, Central Excise duty, interest and imposition of penalty.
1.1 The appellants are engaged in manufacture of excisable goods. During the scrutiny of their records, it was noticed that the appellants were recovering transportation/ freight from their buyers and mentioning the same separately on the correspondence invoices/ bills. The appellant were not including the said freight collected from the buyer in the assessable value of the goods for the purpose of payment of duty. The agreement entered by the appellant with the buyers prescribed the terms as FOR destination. However, in all documents the value of goods and the amount of freight was separately indicated. Revenue was of the view that the amount of freight collected from the buyers should be included in the assessable value of the goods as the delivery was at the premises of the buyer and hence the place of removal would be the premises of the buyer. Revenue was of the opinion that since freight is being collected along with the value of goods, the valuation of the goods cannot be done under sub-section (1) of Section 4 of Central Excise Act, 1944. Revenue invoked Rule 6 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, which provides the valuation of excisable goods where price is not the sole consideration, reads as under:
“where the excisable goods are sold in the circumstances specified in clause (a) of sub-section (1) of Section 4 of the Act except the circumstances where the price is not the sole consideration for sale, the value of such goods shall be deemed to be aggregate of such transaction value and amount of money value of any additional consideration flowing directly or indirectly from buyer to the assessee.””
The revenue treated freight amount collected by the appellant from the buyers as additional consideration. Notice demanding Central Excise duty was issued to the appellant and confirmed by the impugned order.
2. Learned Counsel for the appellant argued that the issue has been settled by the decision of Hon’ble Apex Court in case of M/s Ispat Industries Limited reported at 2015 (324) ELT 670 (SC). He pointed out that in the said decision, it has been held that the ‘place of removal’ can never be buyer’s premises and therefore, the amount of freight upto to buyer’s premises cannot be added to the assessable value of goods for the purpose of payment of excise duty. He relied on the following decisions in support of his arguments:
