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2022 (12) TMI 133 - CESTAT HYDERABADValuation - Short payment of Central Excise duty - inclusion of cost of transportation incurred from the factory to the place of removal (destination) for arriving at the assessable value during the relevant period or not - factory gate - place of removal - period August, 2016 to June, 2017 - levy of interest and penalty as well - HELD THAT:- Under the similar facts and circumstances, the Apex Court in COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [2015 (10) TMI 613 - SUPREME COURT] distinguishing its earlier ruling in the case of COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [2015 (4) TMI 857 - SUPREME COURT], have held that the place of removal referred to in Section 4 r/w Rule 5 and Rule 7 of Central Excise Valuation Rules, clearly indicates, that the place of removal refers to only the sellers premises (factory gate, warehouse, depo, consignees premises). It is nowhere stated that the buyer’s premises can be place of removal. Hon’ble Apex Court also observed that in the Roofit case, it did not have occasion to examine the provisions of Section 4, since it was enacted and amended from time to time in the Central Excise Act r/w the Valuation Rules. After examining Section 4 r/w the rules, the Apex Court observed that the cost of transportation from the place of removal up to the place of delivery of excisable goods is excluded from ‘Assessable value’ for the computation of excise duty - Appeal allowed. Valuation - inclusion of freight and transit insurance in assessable value or not - period from August 2016 to July 2017 - HELD THAT:- The cost of freight and transit insurance need not be included in assessable value - appeal allowed. Rejection of Refund claim - determination of assessable value for the purpose of payment of duty - HELD THAT:- The issue of inclusion of freight in the assessable value, under the admitted facts and circumstances, has already been held in favour of the appellant-assessee relying on the ruling of the Apex Court in the COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [2015 (10) TMI 613 - SUPREME COURT] - demand set aside. Requirement to issue SCN - Section 11AC (1)(d) of CEA - time limitation - HELD THAT:- In absence of the condition precedent, that is issue of show cause notice, no proceedings/dispute can be concluded. Also there is no provision for waiver of SCN, under Section 11AC (1) (d).Further, admittedly, no letter of closures was issued by the revenue as requested by the appellant-assessee. Thus, the amount deposited by the appellant-assessee pursuant to audit letter, was in the nature of revenue deposit. Admittedly, the appellant have done the self-assessment at the time of clearance of the goods without including the freight element. In the facts and circumstances, there cannot be any subsequent self assessment. Further, admittedly no revised return was filed - the limitation prescribed under Section 11B is not applicable - the appellant-assessee is entitled to refund of the amount deposited totaling Rs. 4,23,81,640/- alongwith interest as per rules. Appeal allowed - decided in favor of appellant.
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