TMI Blog2006 (4) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... cturing area. These waste products were sold by the appellant by inviting open tenders. The conditions of the same inter-alia, has been as is where is basis . 2. The appellant paid excise duty on the said contract price as was followed by them previously when the Excise duty was leviable on such waste products. The department thereafter raised objections to such method of determination of assessable value and assessment in the year 2000. The department s contentions was that even though as the sale is on as is where is basis and the loading charges of such waster products were borne by the contractor, the cost of such loading charges ought to have been included in the assessable value of the waste products. Accordingly they were asked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed their reliance on the decision in the following cases. (a) CCE, Aurangabad v. Kada S.S.K. Ltd. [2004 (170) E.L.T. 471 (Tri-Mumbai)]. (b) OCP India Pvt. Ltd. v. CCE C, Bhubaneshwar [2003 (156) E.L.T. 378 (Tri-Kolkatta)]. (c) Pace Marketing Specialities v. CCE [2003 (153) E.L.T. 621]. (d) CCE v. Godavari Manar SSK Ltd. [2003 (158) E.L.T. 663 (Tri)]. 3. On limitation it was submitted that the appellants have been clearing these products from the very inception of the company on the same terms and conditions and they had filed price list from the year 1989 and 1998 which have been approved by the department and their price list clearly indicated that the goods are sold on as is where is basis and the copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court decision in the case of Indian Oxygen Ltd. v. Collector of C.E. [1988 (36) E.L.T. 723 (S.C.)] wherein it was held that so far as the loading charges incurred for loading the goods within the factory are concerned they are to be included in the assessable value irrespective of the fact who has paid for the same but the loading charges incurred outside the factory gate are excludible. 7. On limitation it was submitted that non filing of the correct price declaration is wilful mis-representation as has been held by the Madhya Pradesh High Court in the case of Procter Gamble Hygiene Health Care Ltd. v. Commissioner C.Ex. [2004 (165) E.L.T. 4 (M.P.)]. 8. We have considered the submission of both the parties. We find that even t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted separate prices in respect of clearance pond on as is where is basis and other where the goods were loaded into the wagons ex-factory. For the same product the price in respect of the delivery into the wagon was considerably higher than the expond price. In view of this the matter was fully in the knowledge of the department that the price charged by them did not include the loading charges. In view of this it cannot be held that there has been any suppression of facts on the part of the appellant and therefore extended period cannot be applied. The demand will therefore be limited to 6 months prior to issue of the show cause notice, which comes to Rs. 3,62,165/-. 10. As regards penalty and interest since it has been held that there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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