CESTAT | Whether there can be a claim of exclusion of the freight amount from arriving at the assessable value for the purpose of payment of central excise duty; Tribunal explains

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of P.K. Choudhary (Judicial Member) and P. Anjani Kumar (Technical Member) allowed an appeal filed by the assessee against the demand of Central Excise duty of Rs 5,25,70,268 along with equal penalty and applicable interest confirmed by the Commissioner, Central Excise.

The appellant in this case was engaged in the manufacture of Caustic Soda Lye, Liquid Chlorine and allied goods on which central excise duty was being paid. Dispute was raised by the Central Excise Department on the ground that the appellant’s contracts with its buyers were at FOR prices and the possession of goods after clearance from the factory was given to buyers only at the destination and that sale in such cases had taken place when the delivery was given at destination and, therefore, destination was the ‘place of removal’.

The issue before the Tribunal was whether the appellant could claim the exclusion of the freight amount from arriving at the assessable value for the purpose of payment of central excise duty. The Tribunal perused the judgments of the Supreme Court referred to by the counsel of both the parties. The Tribunal observed that the Supreme Court in the judgment of CCE v. Ispat Industries Ltd., (2015) 14 SCC 712 taking note of its earlier decisions in Roofit Industries as well as Escots JCB, and the various amendments introduced in Section 4 of the Act from time to time, has categorically observed that the buyer’s premises can never be the “place of removal” as has been defined in Section 4 of the Act. The Hon’ble Court also made a very important observation that the words used in Section “place or premises from excisable goods are to be sold” can only be the manufacturer’s premise and if the contention of the Revenue is accepted, the said words will have to be substituted by the words “have been sold” which would only then have possibly have reference to the buyer’s premises.

The Tribunal while allowing the appeal concluded that place of removal would necessarily be the manufacturer’s factory, depots or warehouse belonging to the manufacturer from where the excisable goods are to be sold which is not the case herein. The buyer’s premises can never be the place of removal so as to merit inclusion of the freight amount incurred for delivery of goods from the factory to buyer’s premises. It further held that the contention of the Department to include the freight amount in the assessable value does not meet the test of law and hence was not legally sustainable.[Aditya Birla Chemicals (India) Ltd. v. C.C.E. & S.T., 2021 SCC OnLine CESTAT 13 , decided on 19-01-2021]

Suchita Shukla, Editorial Assistant has put this story together

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