COMMISSIONER CENTRAL EXCISE, MUMBAI-III Vs. EMCO LTD.

JUDGEMENT

(1.) The Respondent/Assessee herein manufactures transformers. The supply of these transformers by the Assessee is primarily to the State Electricity Boards. The Assessee is exigible to the levy of Central Excise under Central Excise Act, 1944 (hereinafter referred to as the 'Act'). Goods, namely, the transformers which are cleared by the Assessee were supplied to the State Electricity Boards. These are subject to excise duty which the Assessee has been paying to the Appellant herein (hereinafter referred to as the 'Revenue"). The dispute in the present case, however, is about the 'transaction value' on which the excise duty is payable Under Section 4 of the Act. The Assessee is paying the duty on the price at which the said transformers are sold to the Electricity Boards. However, the Revenue wants that while arriving at the price of the said goods, transportation cost and transit insurance cost be also included to arrive at the correct transaction value in terms of Section 4(3)(d) of the Act.

(2.) Since the Assessee was not including the transportation and transit insurance cost, a show cause notice was issued on 24.07.2001 proposing to recover a sum of Rs. 1,17,36,766/- on account of short excise duty paid for the period 28.09.1996 to 31.12.2000. In this show cause notice, it was, inter alia, alleged that the transit insurance policies reveal that the Assessee had been keeping the custody of the goods with it during the transit. Further, the agreement with various customers nowhere suggested that the transporter was to take the delivery of goods on behalf of the customers. The transit insurance from the Assessee's works upto the stores sites where the goods were to be delivered at the buyer's premises under the contract, was on Assessee's account. On that basis, the show cause notice contended that the transaction value would include the amount charged on account of transportation and transit insurance as it was covered by the definition of 'transaction value' contained in Section 4(3)(d) of the Act. The Assessee refuted the aforesaid averments in the show cause notice with the plea that sale of goods to the customers took place at the factory gate of the Assessee which was the 'place of removal' of the goods. Merely because the Assessee arranged for transportation as well as transit insurance at the request and instance of the customers, there was no reason to include the cost thereof as transaction value had to be calculated upto the 'place of removal' and the expenses incurred thereafter were not to be included.

(3.) The aforesaid defence of the Assessee did not cut any ice with the adjudicating authority and repelling the contention of the Assessee, demand in the show cause notice was confirmed by the Commissioner, Central Excise vide his Order-in-Original dated 18.08.2002. This order was challenged by the Assessee in the form of appeal before the Customs Excise and Gold (Control) Appellate Tribunal (for short, 'CEGAT'). CEGAT has allowed the appeal simply by mentioning that the issue stands settled in favour of the Assessee by the decision of the Tribunal which has been approved by the Supreme Court.