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2015 (3) TMI 910 - AT - Central ExciseValuation of stock transfer - appellant was collecting "other charges" - These charges were meant to recover the additional cost that the appellant was incurring in transporting the goods from warehouse to depot, storing the goods in the depot and for the investment made in the storage tanks and pipelines upto the jetties - whether this amount will form part of the assessable value or not - Invocation of extended period of limitation - Suppression of facts - Penalty u/s 11AC - Differnce of opinion - Majority order - Held that:- A bare reading of Section 4(1) would indicate the essential criteria for determining the value is the place where the goods are sold by the assessee. If goods are sold at the place of removal, then the sale value is the transaction value for assessment purpose. This is clear from Section 4(1)(a) itself and I need not go to the rules. Thus for the period from 14.5.2003 onwards since the depot was considered as the place of removal, the value at which the goods are sold from the depot will be the assessable value and duty has to be charged accordingly. There is no dispute about the fact that the other charges were collected by the appellant and these were not included in the assessable value while making the payment of duty at the warehouse. There can be no doubt that for all such clearances, they were required to pay the duty at the sale price at the depot. During the period 1st July 2000 to 13th May 2003, the goods were not sold at the place of removal (which is warehouse in this case). In my view, Rule 5 is therefore not applicable to the present case. Further, Rule 7 is applicable when the goods are not sold by the assessee at the time and place of removal but are transferred to depot, etc. from where the excisable goods are to be sold. This is precisely the situation in the present case. The appellant has not sold the goods at the time and place of removal but stock transferred to their depot where the goods were stored and later on sold. In view of the above analysis, in my view, Rule 5 of the Central Excise Valuation Rules, 2000 will not be applicable, but the Rule 7 would applicable. Further, Rule 7 very clearly indicates that the value shall be the normal transaction value of such goods sold from such other place at or about the same time. Thus the transaction value prevailing at the depot will be taken as the transaction value while clearing the goods from the warehouse. Appellant has been paying the duty at their warehouse and such invoices were for STOCK transfer. Normally in such cases, one would expect that the appellant would be collecting the same amount from the buyers. The fact that the appellant was collecting extra amount in the invoices issued from the depot was clearly suppressed from the Revenue and this is a very important aspect. Since there was suppression of the actual sale price from the Revenue, the ingredients of proviso to Section 11A are satisfied and, therefore, extended period of time is invokable. Similarly, penalty under Section 11AC is also leviable as there is a clear cut suppression of facts which are very material in determining the assessable value. - extended period of time is rightly invoked and penalty under Section 11AC is also leviable. - Decided against assessee.
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