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TMI Blog2010 (7) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... geable to Central Excise Duty under Chapter heading 84 & 87 of Central Excise Tariff. During the scrutiny of their Central Excise records for the period from April '01 to March' 03, it was observed that they had been selling their finished product to Government Departments at DGS&D rate contract and as per the sale contract, the responsibility for transportation of the goods lies with the respondent to whom the payment is to be released on receipt of the goods at the buyer's premises. It was also found that while their invoices did not mention the freight charges, they were charging additional amount towards freight by debit notes, but the same was not being included in the assessable value. The Department was of the view that since the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls to Commissioner (Appeals) against order-in-original No. 100-103/AC/CE/03 dt. 6-2-04 and No. 104/AC/CE/2003 dt. 30-1-04 passed by the Asstt. Commissioner and the Commissioner (Appeals) by common order-in-Appeal No. 842-843/CE/CHD/04 dt. 29-12-04 dismissed the Department's appeals. It is against this order of the Commissioner (Appeals) that these two appeals have been filed by the Department. 2. Heard both the sides. 2.1 Shri Amrish Jain, learned DR, assailed the impugned order-in-appeal reiterating the grounds of appeal and emphasised that - (1) the sales in respect of which these duty demands have been made, were FOR basis and as per the sales contract, not only the respondent were responsible for arranging the tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansporter; that in this case since the goods were handed over to the transporters at the factory, the sale is deemed to have taken place at the factory gate and hence the charges of transportation from the factory gate to the buyer's premises are not includible in the assessable value; that the GRs are also in the name of the consignees and not self, which also shows that during transit, the ownership was of the consignee not of the respondent; that Hon'ble Supreme Court's judgment in the case of CCE, Noida v. Accurate Meters Ltd. reported in 2009 (235) E.L.T. 581 (S.C.) is squarely applicable to the facts of this case; that the price shown in the invoices did not include the freight which was being separately charged through the debit note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitted to be deposited without payment of duty. It is only w.e.f. 14-5-03 that by amendment to this Section, premises of consignment agent or any other place or premises fromwhere the excisable goods are sold after their clearance, from the factory, were included in the definition of "place of removal". However, even during period prior to 14-5-03, in respect of cases where the sale does not take place at the factory gate and after removal from the factory, the goods are sold from depots or consignment agent's premises or any other premises, Rule 7 of the Central Excise Valuation Rules, 2004 provided that in such cases, the assessable value would be the normal transaction value of such goods sold from such other place at or about the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the buyer, we are of the view that in such a situation, the sale has taken place at the buyer's premises only, as it is only after handing over the goods in good condition at the buyer's premises, that the consideration for the transfer of property in goods would be received by the Respondent. In view of this, 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. Accordingly, the duty was payable on the assessable value including the expenses of freight from the factory gate to the buyer's premises. 6.As regards the question of limitation, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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