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2013 (3) TMI 260 - AT - Central ExciseValuation - inclusion of Differential freight - place of removal - appellant supplying Thermit Powder and Thermit Welding equipment to Indian Railways against the supply contracts - two types of contract in the first type the price is on FOR destination price which includes element of freight & in second type there is the factory gate price plus freight on per pieces basis - duty demand with equivalent penalty - period of dispute 1992-93 to 1994-95 - Held that:- During the period of dispute the place of removal was the factory gate or the warehouse where the goods have been permitted to be stored without payment of duty. Thus in accordance with the definition of 'place of removal’, in the present case the it would be factory gate, and hence, the value of the goods would be the price for delivery at the factory gate. Therefore there is no question for inclusion of freight charge in the assessable value even if the appellant have received the more amount towards the freight than the expenses on freight actually incurred. In case where the price quoted was on FOR price, the appellant have paid duty on the FOR price without claiming any deduction. Thus there is no short payment. As decided in Baroda Electric Meters Ltd. (1997 (7) TMI 126 - SUPREME COURT OF INDIA) where freight amount charged by the manufacturer from the buyer is more than the freight charged in the expenses incurred on differential is not includible - no positive evidence to show that the appellant had deliberately suppressed the assessable value and had inflated the freight amount - in favour of assessee.
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