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2015 (2) TMI 695 - AT - Central ExciseValuation of goods - refund under area based exemption - inclusion of transport charges - Benefit of Notification No.56/2002-CE dated 4.11.2002 - Held that:- Sale is on FOR destination basis and the destination is the buyer s premises. The cost of transportation is included in the assessable value and the transit insurance has also been taken by the appellants in their name for safe transport of the goods. Thus, it is evident that the ownership of the goods remained with the appellants upto the place of delivery at the buyers premises. In other words, the point of sale is the buyers premises. In these circumstances the place of removal, as per definition in section 4 of the Central Excise Act, 1944 becomes the buyers premises, as that is the place or premises from where the excisable goods were sold after the clearance from the factory from where such goods were removed. That being the case, the freight charges are clearly includible in the assessable value. Therefore, duty paid by them on the impugned goods on value inclusive of the freight charges has been correctly paid and consequently the impugned refund (self-credit) thereof under notification No. 56/2002-CE has also been correctly taken. The decision of the Chattisgarh High Court in the case of Ultratech Cement Ltd. Vs. CCE Raipur : [2014 (8) TMI 788 - CHHATTISGARH HIGH COURT] is also in harmony with the view taken by Punjab & Haryana High Court (2009 (2) TMI 50 - PUNJAB & HARYANA HIGH COURT) in this regard. In the wake of the foregoing analysis and judicial precedents, the judgement of CESTAT in case of Aditya Birla Insulators Ltd. Vs. Commissioner, Central Excise, Kolkata-IV:[2008 (4) TMI 48 - CESTAT, KOLKATA] holding a contrary view clearly stands over-ruled. Thus, the appellants rightly included the cost of transportation in the assessable value. This issue having thus been settled in the appellants favour, the duty was correctly paid and hence the impugned refund correctly taken. Extended period has also been invoked in respect of the Order-in-Original dated 31.12.2012. In this regard, we find that it has not been brought out as to what which was required to be brought to the notice of the Department as per any provision law was not brought to the department’s notice. The appellants had been filing their ER-1 returns showing all the details required to be shown therein. It has been held by Supreme Court in the case of Commr. Vs. Champhar Drugs Liniments: [1989 (2) TMI 116 - SUPREME COURT OF INDIA] that something positive other than mere inaction or failure on the assessee s part or conscious withholding of information when assessee knew otherwise is required for invoking extended period. In case of Gopal Zarda Udyog vs. CCE, Delhi, Supreme Court observed that mere failure or negligence on the part of the manufacturer does not attract the extended period. - Decided in favour of assessee.
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