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TMI Blog2002 (4) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... ? 2. Shri K. Narasimhan, learned Advocate, submitted that the Appellants manufacture branded chewing tobacco; that the basic question as to interpretation of place of removal and admissibility of deduction of freight and insurance charges on sale from duty paid depot have been decided against them by the Larger Bench in their own case as reported in 2000 (119) E.L.T. 191; that they have gone in appeal in the Supreme Court on the aspect of interpretation of place of removal; that the duty demanded under the impugned order is for the period from 1-10-96 to 1-8-99 and the show cause notice was issued on 3-1-2001; that the Appellants when they made the initial declaration of assessable value derived from the All India Equalised cum-duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue with the intention to evade payment of duty of Central Excise. It was also alleged that the appellants wilfully and intentionally suppressed the correct place of removal where the transaction of sale was completed with the intention to evade payment of duty; that these allegations were not supported by evidence of any kind; that no provision existed in proforma of price declaration for declaring place of removal; that while submitting the price declaration, the Appellants had written a letter dated 16-9-96 in which it was mentioned that the duty paid godown would be used as place of removal for dispatch of sale to the buyer on F.O.R. destination basis; that in view of these facts and consideration the allegation of suppression and mis-d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as it had wrongly been presumed that the additions to be made to the assessable value are the actual freight incurred in the delivery of the goods on F.O.R. destination the contract price whereas they deducted only the All India Equalised quantum of freight and insurance charges appropriate for each of the individual removal on payment of duty; that the correct method of arriving at the differential duty would be to include in the first instance the assessable value from the gross cum duty selling price by applying the formula applied by the Supreme Court in M.R.F. case; that for this calculation the permissible deduction would be only the local taxes such as Octroi included in the gross selling price as an equalized components and shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claration they cannot claim that they had declared their sale pattern to the department i.e. transferring of duty paid goods to the godown and thereafter delivery of said duty paid goods at the destination of buyer by bearing various expenses such as transportation and insurance charges incurred from the place of manufacturer to the godown and thereafter from the godown to the place of buyer, that the Appellants had claimed their place of removal as their duty paid godown instead of place of buyer where the goods were actually being delivered after incurring various expenses. The learned SDR, therefore, claimed that the facts were suppressed with intent to evade payment of duty. In reply the learned Advocate submitted that F.O.R. destinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eerut-II v. Prabhat Zarda Factory Ltd., 2000 (119) E.L.T. 191 (T-LB) wherein it was held that where the ownership of the excisable goods remained with the manufacturer up to the place of buyer from where the goods were delivered to the buyer, the place of removal for the purpose of clause (iii) of Section 4(4)(b) of the Act would be the said place of delivery. In view of this settled position, the finding in the impugned order to the effect that the deductions on account of freight and insurance charges claimed by the Appellants are not admissible is confirmed as the place of removal is the destination of the buyers only. We do not find any substance in their argument that the demand of duty is time-barred as they had filed the price declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that the place of removal of goods was at the destination of buyers. Accordingly, the extended period of limitation is invocable in the present matter. However, we find force in the submissions of the learned Advocate that the duty has not been quantified correctly. It has been held by the Appellate Tribunal in the case of Srichakra Tyres Ltd. v. CCE, Madras, 1999 (108) E.L.T. 361 that total duty proposed to be demanded shall have to be abated from the cum-duty price actually received and liable to be received as a consideration for sale of goods. The sale price realized by the Appellants has to be regarded as the entire price inclusive of excise duty and accordingly as per the provisions of Section 4(4)(d)(ii) of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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