ORDER
T.K. Jayaraman, Member (T)
1. This appeal has been filed against OIA No. SVS/16/NGP-I/2005 dated 18.1.2005 passed by the Commissioner of Customs and Central Excise (Appeals) Nagpur.
2. The issue involved in this case is that the appellant had entered into a contract with Railway for supply of prestressed concrete sleepers. In terms of the contract, the Railways were to supply MC Inserts and HT Wires to the appellants free of cost. The appellant was paying the duty on the value of sleepers as per the contract and the value of the Insert plus HT wires was shown in the input invoices. It is the contention of the Revenue that the cost of transportation of the Inserts has not been included while arriving at the assessable value. Therefore, a demand has been made to the tune of Rs. 5,05,385/-. Longer period has been invoked. The Adjudicating Authority confirmed the demand and he imposed equal penalty and ordered recovery of interest under Section 11AB. The appellants aggrieved over the decision of the Adjudicating Authority had approached the Commissioner (A) and the Commissioner (A) has given a clear finding that the cost of transportation of the material received from Railway free of cost has to be included. However, he had remanded the matter to the Original Authority for re-computation of the duty demand after determining the transportation charges upto the factory of the appellant.
3. The learned advocate Shri V.J. Sankaram who appeared on behalf of the appellants stated that there is absolutely no evidence to show that the cost of the transportation of the Inserts had not been included. He said that the Inserts are received from the Railways free of cost and Railway furnished the value of the Insert and on the basis of the value given by the Railways, duty was paid by the appellants and there is no warrant for the department to assume that the Railways had not included the cost of transportation.
4. The learned departmental representative stated that while calculating the duty liability, the landed cost of the Insert has to be taken into account as held by the Commissioner (A) and definitely the cost of transportation is includable.
5. On a very careful consideration of the issue, we find that the Revenue has proceeded on certain assumptions in the absence of any documentary evidence. It is seen that the appellants supply prestressed concrete sleepers to the Railways on the basis of the contract. While discharging the duty liability, they take into account the value of the Inserts which were received free of cost from the Railways. The value is based on the information furnished by the Railways. It is not understood how the Revenue came to the conclusion that the cost of transportation was not included by the appellants. They ought to have done detailed investigation with the Railways and found out the truth. Instead, they have proceeded against the appellants. In the absence of complete documentary evidences, arbitrarily Revenue has taken some transportation charges at Rs. 1050/- PMT, which has also not been accepted by the Commissioner (A). That is why the Commissioner (A) has sent back the matter to the Original Authority. In any case, the very fact that the transportation cost was not available shows that Revenue had not done any proper investigation and had simply jumped to the conclusion that the cost of transportation was not included in the value of the Inserts. In these circumstances, there is absolutely no merit either in the show cause notice or in the impugned order. Therefore, we allow the appeal with consequential relief, if any.
(Pronounced in open court on 27.11.2007)