ORDER
Archana Wadhwa, Member (J)
1. After hearing both sides, we find that the duty of Rs. 48,355/- has been confirmed against the appellants, who are the manufacturer of explosives, on the ground that the freight expenses incurred by them for supply of explosives to M/s. Coal India Ltd., are required to be included in the assessable value. In addition, personal penalty of identical amount has been imposed.
2. It is seen that the entire amount of freight has been included in the assessable value. The Tribunal’s decision in the case of Commissioner of Central Excise, Nagpur v. Sigma Transformers & Electrical Pvt. Ltd., has held that the freight charges, where the title of the goods was transferred at the factory gate is not required to be added in the assessable value, in terms of Hon’ble Supreme Court’s decision in the case of Baroda Electricals, even where the amount of transportation charges be collected from the Customers is more than the actual freight expenses incurred, the differential amount cannot be added in the assessable value. In the present case, we informed by the Id. Representative that they are actually incurring loss for transferring the goods to Coal India Ltd.
3. In view of the foregoing, we find that the appellant has been able to make out a prima facie case in their favour so as to allow the stay petition unconditionally.
4. At this stage Id. Representative for the appellants informs us that the Commissioner (Appeals) in their own case for a different period has already allowed the appeal on the identical issue and the revenue has filed an appeal there-against before the Tribunal, which is pending decision.
5. The registry is directed to link the present appeal with the earlier appeal of the revenue being the Appeal No. E/3476/04/Mum/2004. Inasmuch as the short point is involved, we fix both the appeals on 22-6-2005.
(Dictated in Court)