Sanjiv Srivastava ORDER
P.K. Choudhary, Member (J)
1. The Respondent is engaged in the manufacture of "M.S. Fabricated Hot Dip Galvanized Steel Structures (Tower)". The Officers of AGUP, Lucknow visited the factory premises of the Respondent from 13.12.2010 to 18.12.2010 and conducted audit of Books of Accounts and Central Excise records for the period from April, 2008 to March, 2010. During the course of Audit, it was observed by the Audit party that the Respondent charged freight from their buyers but did include the same in the transaction value in terms of Section 4(3)(d) of the Central Excise Act, 19441 which provides that "Transaction Value" means the price actually paid or payable for the goods, when sold, and includes, in addition to the amount charged as price, any amount that the buyer is liable to pay, or on behalf of the assessee by reason of, or in connection with the sale, whether payable at the time of sale or at any other time, including, but not limited to, any amount charged towards expenses, storage, outward handling servicing, warranty, commission or any other matter, but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. Further, Section 4(3)(c)(iii) ibid stipulates that the place where delivery is given to buyer, will be the place of removal and value will be price at that place include transport, handling and insurance charges upto that place. Accordingly, Show Cause Notice2 covering period up to October, 2015 demanding Central Excise duty amounting to Rs. 20,90,082/- has been issued under C. No. IV(9)Adj/Telecom/N-II/186/2015/4824 dated 04.12.2015. For the further period i.e. November, 2015 to June, 2017 statement of demand dated 30.11.2017 has been issued demanding central excise duty amounting to Rs. 51,81,676/- alongwith applicable interest and also proposal to impose penalty under the provisions of Rule 25 of Central Excise Rules, 20023 read with Section 11AC of the Act. The Adjudicating Authority vide Order-in-Original dated 25.04.2018 confirmed the demand as proposed in the show cause notice and imposed penalty of Rs. 51,81,676/- under the provisions of Rule 25 of the Rules read with Section 11AC of the Act.
2. Being aggrieved, the assessee filed appeal before the first Appellate Authority and the learned Commissioner (Appeals) allowed the appeal before him by setting aside the Order-in- Original.
3. Being aggrieved by the impugned Order-in-Appeal, the Revenue has filed the present appeal before the Tribunal. When the matter was called none appeared on behalf of the Respondent-assessee.
4. Heard the learned Departmental Representative and perused the appeal records.
5. The learned Departmental Representative reiterated the grounds of appeal and relied on the discussions and findings of the Additional Commissioner of Central Tax, GST, Central Excise, Gautam Buddha Nagar in the Order-in-Original dated 25.04.2018. We find that the Respondent had entered into contract with respective customers for manufacture and supply of goods, thereafter goods were supplied on the terms and conditions of contract. The customers carried out inspection/testing of the goods in Respondent's factory before the same is discharged to the destination specified in the purchase order. At the request of the customers, the transporters were engaged by the Respondent and they were always paid separately for the same. The price of goods depends upon the transaction value of goods and the element of freight........