ORDER
S.L. Peeran, Member (J)
1. By the COD application, the appellants have prayed for condonation of delay of 2 days. They have filed an affidavit explaining the delay. In view of the explanation given for the delay, the COD application is allowed.
2. By Stay application, the appellants are seeking waiver of pre-deposit of duty of Rs. 22,90,132/- and like sum as penalty. As the issue is covered in favour of the appellant, therefore, with the consent of both sides, the stay application and the appeal are taken up together for disposal as per law. Revenue has proceeded to include the actual freight charges in respect of clearances made at factory gate and at depot on the basis of the sale price at factory gate and depot. The question is as to whether the freight charge is required to be added in the assessable value.
3. The learned counsel submits that the freight charges are not to be included in the invoice value as it is not part of the assessable value and the freight charges are paid for delivery from the factory gate and from the depot to the customer’s place. He submits that this very issue has been gone in great detail and the Apex Court, in the case of Indian Oxygen Ltd. V. CCE – 1988 (36) ELT 723 (SC) = (2002-TIOL-263-SC-CX) has clearly laid down that when ex-factory price is ascertainable then the ex-factory price has to be the basis for value under Section 4 of the CE Act. In the case of Baroda Electric Meters Ltd. V. CCE – 1997 (94) ELT 13 (SC), the Apex Court has held that the freight actually paid less than the amount collected by way of equivalent fright is not required to be added in the assessable value since the duty of excise is on manufacture and not on profit made by a dealer on transportation. In the case of Empire Industries Ltd. V. CCE, Bombay – 1997 (95) ELT 653 (Tribunal), the Tribunal had also likewise held that freight charges are not includible in the assessable value. The same view has been expressed in the following cases:
(i) S.R. Jhunjhunwala V. CCE, Mumbai-II – 1999 (114) ELT 890 (Tribunal).
(ii) Transpeck Industry Ltd V. CCE, Baroda – 2003 (162) ELT 1095 (Tri.-Del.)
(iii) Apollo Tyres Ltd. V. CCE, Cochin – 2003 (160) ELT 836 (Tri.-Bang.)
(iv) Anjaleem Enterprises Pvt. Ltd V. CCE, Ahmedabad – 2001 (137) ELT 1190 (Tri.-Mumbai)
(v) Bio Foods (P) Ltd. V. CCE, Meerut – 2003 (151) ELT 168 (Tri.-Del.)
(vi) CCE, Meerut V. Majestic Auto Ltd. – 2002 (146) ELT 327 (Tri.-Del.).
4. On a careful consideration, we notice that the issue is no longer res integra and the matter has been decided from Apex Court onwards. Despite the law being very clear, yet the Revenue is still perusing the issue without bringing any amendment in the statute. The proceedings are not sustainable. Respectfully following all the citations cited supra, the impugned order is set aside and the stay application and the appeal are allowed with consequential relief if any.