TMI Blog2011 (12) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... ot available. Therefore, under Rule 7 of the Valuation Rules, the value of the goods under assessment shall be the transaction value of the goods sold from the depot at the time nearest to the time of removal and in the present case, the time nearest to the period of 23-4-2001 to 3-5-2001 is 8-5-2001. We, therefore, hold that the lower authorities have rightly ordered the assessment of the goods at Rs. 5,500/- per kg. at which the goods were sold on 8-5-2001 from the depot. We, therefore, find no infirmity in the impugned order - Decided against assessee. - E/94/2004 - Final Order No. A/1019/2011-WZB/C-II(EB) - Dated:- 2-12-2011 - Shri S.S. Kang and Sahab Singh, Members (T) Shri Manish Panda, Advocate, for the Appellant. Shri V.K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2000, and Rule 7 of the said Rules is specifically applicable to the situation of the present case. Accordingly a show cause notice was issued to the appellant on 23-4-2002 demanding duty of Rs. 43,20,000/- on those goods on the basis of depot sale price of Rs. 5,500/- per kg. for the clearances made by the appellant from their factory during the period 23-4-2001 to 3-5-2001. The show cause notice was contested by the appellant. The notice was adjudicated by the Deputy Commissioner vide order-in- original dated 14-10-2002 and the same was challenged by the appellant before the Commissioner (Appeals) who vide the impugned order has rejected the appeal. Hence this appeal. 3. The learned counsel appearing for the appellant submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order-in-appeal needs to be set aside. 4. The learned counsel relied upon the following decisions :- (i) E.I. Du Pont India Pvt. Ltd. v. CCE, Chennai - 2005 (181) E.L.T. 27 (Tri.-Del.); (ii) Anand Duplex Ltd. v. CCE, Meerut - 2005 (181) E.L.T. 211 (Tri.- Del.); (iii) Bhuvalka Steel Industries Ltd. v. CCE, Bangalore-I - 2007 (213) E.L.T. 149 (Tri.-Bang.). 5. The learned Additional Commissioner (AR) appearing for the Revenue defended the order-in-appeal and reiterated the findings of the lower authorities and requested that the order-in-appeal needs to be upheld. 6. After hearing both sides, we find that the question involved in the appeal is how valuation of the goods is to be done when the goods are not sold at the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not related and the price is the sole consideration for the sale, the value shall be the normal transaction value of such goods sold from such other place at or about the same time and, where such goods are not sold at or about the same time, at the time nearest to the time of removal of goods under assessment. Since the goods are not sold at the factory gate but transferred to the depot from where sale to the independent buyer is made, Rule 7 is clearly applicable to the present case. 7. We find that the appellant cleared the goods from their factory during 23-4-2001 to 3-5-2001. There was no sale of the goods from the depot during this period. There was no sale of goods from the depot prior to 23-4-2001 also. The first sale of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the cited case are distinguishable in the present case. 9. The other two decisions cited by the learned counsel, namely Anand Duplex Ltd. and Bhuvalka Steel Industries Ltd. (supra), are also not applicable to the present case, as the first one is a remand order covering the period from May 1999 without stating the last clearance from the factory, in the absence of which it is difficult to say whether the Valuation Rules, 2000 were applicable or not to the cited case. In the second case, the issue related to deduction on account of transportation charges which is not the issue before us in the present case. 10. As regards the penalty imposed under Rule 173Q of the Central Excise Rules for contravention of Rules 173F and 173G read with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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