TMI Blog2010 (7) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... , that the consideration for the transfer of property in goods would be received by the Respondent - in accordance with the provisions of Rule 7 of the Central Excise Valuation Rules, the assessable value of the goods would be their value at the buyer's premises, which naturally would include the element of freight from the factory upto that premises - duty was payable on the assessable value including the expenses of freight from the factory gate to the buyer's premises - E/1030-1031/2005 - 462-463/2010-EX(PB) - Dated:- 16-7-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY : Shri Amrish Jain, DR, for the Appellant. Shri B.L. Narsimhan, Advocate, for the Respondent. [Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re issued for recovery of allegedly short paid duty amounting to Rs. 6841/-, Rs. 3520/-, Rs. 25,566/-, Rs. 17,455/- and Rs. 14,142/-respectively for the period Sept.' 2000 to March' 01 from April' 01 to Sept' 01, Oct. 01 to March' 02, April '02 to Sept' 02 and Oct' 02 to March' 03 respectively alongwith interest on duty at the applicable rate, as per the provisions of Section 11AB and also for imposition of penalty on the respondent under Rule 173Q(1) of Central Excise Rules, 1944 and Rule 25(1) of Central Excise Rules, 2001/2002. 1.1.2 The show cause notices dt. 3-4-02, 20-9-02, 13-3-03 and 11-9-03 were adjudicated by a common order-in-original No. 100-103/AC/CE/03 dt. 6-2-04 by which the proceedings initiated by the above mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged against the debit notes was additional consideration, in addition to the amount shown in the invoices issued at the time of clearance of the goods and hence the same was includible in the assessable value. Shri Amrish Jain also pleaded that extended period under proviso to Section 11A(1) of the Central Excise Act has been rightly invoked as the facts that the sales were on FOR basis and as per the contract terms, during transit of the goods to the buyer's premises, the risk was of the respondent, had never been disclosed to the department and these facts came to the notice only when the records of the respondent were subjected to detailed scrutiny. 2.2 Shri B.L. Narsimhan, Advocate, learned Counsel for the respondent pleaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inished goods to Government Sector buyers at DGS D contract rate, the expenses of freight from the factory gate to the buyers premises are includible in the assessable value or not. While according to the respondent, the sales had taken place at the factory gate and hence it is factory gate which is the place of removal and accordingly, there is no justification for inclusion of the freight expenses for outward transportation in the assessable value, according to the Department from the terms of the contracts, it is clear that the sale had taken place at the customer's premises and hence the outward freight from the factory gate to the place of delivery to the buyers would be includible in the assessable value. 4. During the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight and insurance from the factory gate to the premises where the goods were sold. 5. The main question in this case is as to whether the goods were sold at the buyer's premises. According to the respondent, since the goods were handed over to the transporters at the factory gate and the GRs are in the name of the consignees (buyers) and not in the name of the consignor, in terms of the provisions of Section 33 of sale of the goods Act, the goods would be deemed to have been sold at the factory gate when the same were handed over to the transporter, on the transporter the acts as the agent of the buyer. However, on going through the sales contract, we find that in each supply order, which is against the DGS D rate contract, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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