Commissioner Of Central Excise, ... vs Manchukonda Prakasham & Co. (Now M/S. ...

[Arising out of Order-in-Appeal No. 03/2010 dated 10/11/2010 passed by the Commissioner of Customs, Central Excise and Service Tax, Guntur]

For approval and signature:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Commissioner of Central Excise, Customs & Service Tax, Tirupati 9/86-A, Behind West Church Compound, Amaravathi Nagar, M.R. Palli  517 502 Andhra Pradesh Appellant(s)

Versus Manchukonda Prakasham & Co. (Now M/S. Manchukonda Prakasham Industries India Pvt. Ltd. ) Anagunta Village, Vedullacheruvu Post, Renigunta, Chittoor Dist. Andhra Pradesh Respondent(s)

Appearance:

Mr. Mohd. Yusuf, AR For the Appellant

Mr. Y. Sreenivasa Reddy, Advocate For the Respondent

Date of Hearing: 29/05/2015 Date of Decision: 29/05/2015 CORAM:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 21316 / 2015

Per : ARCHANA WADHWA

Being aggrieved with the order of Commissioner (Appeals) vide which he has upheld the order of original adjudicating authority dropping the demand against the assessee, Revenue has further filed the appeal before the Tribunal.

2. As per facts on record respondents are engaged in the manufacture of PSCC poles, which they are mostly supplying to electricity boards and power distribution companies. The said supply is against the orders placed by their buyers showing the pole price and the equalized freight charges separately. In some cases the freight incurred by the appellant is more than the equalized freight and in some cases it is less than equivalized freight, as recovered by them from their customers. Revenue, by entertaining a view that wherever the appellants have paid less freight charges, the excess collection of amount of freight is required to be added in the assessable value of the goods, initiated proceedings against them, which resulted in confirmation of demand in the earlier order. The appellant approached the settlement commission and settled the matter. Thereafter they started paying duty on such excess recoveries on account of freight.

3. Subsequently realizing that the said excess freight recovered by them from their customers is not to form part of the assessable value, they filed the refund claims within the period of limitation. Such refund claims were sanctioned by the original adjudicating authority by following the Supreme Courts decision in the case of Baroda Electric Meters Ltd. V. Collector [1996 (85) E.L.T. 363 (Tri.)] (supra). Being aggrieved with the said order, Revenue filed an appeal before the Commissioner (Appeals) vide which he rejected the Revenues appeal and upheld the order of the original adjudicating authority.

Hence the present appeal by the Revenue.

4. Revenue in their memorandum of appeal have referred and relied upon one decision of the Tribunal in the case of Mercedes-Benz India Pvt. Ltd. Vs. CCE, Pune-I [2010 (252) E.L.T. 193 (Tri.-Mumbai)] wherein it was held that road delivery charges collected in excess of the actual amount incurred would form part of the assessable value. Accordingly the prayer of the Revenue is to adopt the said decision and allow the appeal.

5. It stands brought to my attention by the learned advocate appearing for the respondents that the said decision of the Tribunal in the case of Mercedes-Benz India Pvt. Ltd. was challenged by the assessee before the Honble Bombay High Court. The High Court in their decision reported as [2010 (252) E.L.T. 168 (Bom.)] set aside the same and remanded the matter to the Tribunal, with certain observations. The Tribunal in remand proceedings, held that such excess collection is not to form part of the assessable value, as reported as [2010 (260) E.L.T. 149 (Tri.-Mumbai)]. As such the contention of the learned advocate is that the sole reliance of the Revenue, in their memorandum of appeal, on the said decision of the Tribunal in the case of Mercedes-Benz India Pvt. Ltd., is no longer available to them.

6. Apart from above, I find that the issue is covered by the Honble Supreme Courts decision in the case of Baroda Electric Meters Ltd. as also in the case of Accurate Meters Ltd. V. Commissioner [2009 (91) RLT 653 (S.C)]. There is plethora of decisions of the Tribunal holding that such excess collection on account of freight cannot form part of the assessable value of the goods unless the Revenue produces evidence to show that value of the goods was collected in the garb of the freight charges. There is no such evidence available much less any allegation in the present appeal. As such I find no reasons to interfere in the impugned order of the authorities below, which are based upon the declaration of law by the Honble Supreme Court. Revenues appeal is accordingly rejected.

(Order pronounced in open court)

(ARCHANA WADHWA) JUDICIAL MEMBER

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