Per Justice K.K. Usha :

Since identical issues are raised in these appeals and common arguments were addressed by both sides, we propose to dispose of the appeals under a common order.

Appeal No. E/1124/01-A-M/s. Associated Strips Ltd. vs. CCE New Delhi.

2. The above appeal is at the instance of the assessee challenging the Order-in-Appeal No. 267-CE/DLH/2001 dated 12.3.2001 passed by the Commissioner of Central Excise (Appeals), New Delhi. Original authority has taken the view that the property in the goods had passed in the case of the transactions involving the assessee at the buyers premises and not at the factory gate and, therefore, the element of freight and transit insurance are to be included in the normal value as contemplated under section 4 of the Central Excise Act, 1944. The demand of differential duty as per the show cause notice was confirmed by its order dated 2.2.2000. Appeal therefrom was dismissed by the Commissioner (Appeals). According to the Commissioner (Appeals), appellant's case has to be decided in the light of the ratio of the decisions of this Tribunal in CCE Meerut Vs. Prabhat Zarda Factory Ltd. 2000 (38) RLT 637 (CEGAT-L.B.) = RLT (L.B.-CEGAT) - 1683=2000(119) ELT 191 and M/s. Escorts JCB Ltd. Vs. CCE New Delhi 1999 (35) RLT 9. Aggrieved by the above the assessee has come up in appeal before this Tribunal.

3. It is contended on behalf of the appellant that the facts in this case are entirely different from what were available in the two decisions of the Tribunal, namely, Escorts JCB Ltd. and Prabhat Zarda (supra). Accordingly to the appellant, original authority as well as the appellate authority have wrongly applied the dictum laid down in the abovementioned cases to the facts of the appellant's case.

4. The appellant is engaged in the manufacture of steel tubular poles, rectangular poles and pipes etc. falling under sub-heading 7306.90 of the Central Excise Tariff Act, 1985. The poles are chargeable to duty ad valorem. Appellant is mainly supplying the goods to Electricity Boards, Govt. Departments, Municipal Corporations as also private companies. The transactions with which we are concerned in this appeal are those relating to supply of steel tubular poles, rectangular hollow steel poles to Electricity Boards. Tenders were floated by Electricity Boards inviting offer of supply of the abovementioned material. The appellant points out that the tenders clearly indicate that the price of the goods should be ex-works and the amount of freight and insurance is separately payable and that taxes are not payable on freight, forwarding and insurance charge. Pursuant to the acceptance of the appellant's offer purchase orders were issued by the Electricity Board. Two separate purchase orders were issued, one for the ex-works price of the goods and another for the expenditure towards freight , insurance, handling charges etc. As per terms of the purchase orders the goods manufactured by appellants are required to be inspected by the representative of the buyer and thereafter the appellant had to mark the name of the buyer on the poles before they are handed over to the transporters. It is contended by the appellant that once the goods are approved they are appropriated to the contract.

5. On the basis of the purchase orders received the appellants raise the invoices showing therein the ex-works price of the final product and paying duty at the appropriate rate. Sales tax is also duly paid and shown separately in the invoice. The expenditure in connection with the freight, insurance, forwarding, etc. are also reflected separately in the invoice and no excise duty or sales tax is paid on such amount. The buyer, Electricity Board, is shown as consignee in the invoice. Lorry receipts issued by the transporters of the goods also show the buyer as consignee.

6. It is the contention of the appellant that the facts narrated above would clearly distinguish its case from Prabhat Zarda Factory Ltd. and Escorts JCB. Hi