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2016 (5) TMI 1045 - CESTAT ALLAHABAD

2016 (5) TMI 1045 - CESTAT ALLAHABAD - TMI - Extended period of limitation - Valuation - Inadmissibility of deduction of transportation charges on equalized basis - Rule 5 of Central Excise Valuation Rules, 2000 - Duty demanded alongwith penalty - Revenue contended that assessee did not disclose any vital facts to the Department that they were not including freight and insurance charges in the assessable value while making the delivery at FOR destination - Held that:- the respondent assessee hav .....

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ppeal against order of the Commissioner (Appeals) dated 14/6/2006 whereby it was held that extended period of limitation is not attracted and accordingly, the order-in-original are set aside. 2. The brief facts are that the respondent assessee is engaged in the manufacture of optical fibre cable/accessories/poly insulated jelly filled cables. On scrutiny of records for the period July,2000 to October,2003, the revenue found that the assessee had cleared their products to BSNL on the basis of com .....

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23 proposed to be recovered under proviso to section 11 A (1) of the Act along with proposal to impose penalty under Rule 25 read with section 11 AC of the Act. 2.2 The appellant appeared and contested the show cause notice. It was contended that the goods were cleared to BSNL on the price as per the agreement and transportation charges as actually incurred, which fact is verifiable from the copies of invoices and that transportation charges was shown separately on the invoices and mentioned act .....

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ce was also proposed on the ruling of Honourable Supreme Court in case of CCE versus Flexton Cables India , wherein it was held that delivery of goods/transfer of possession to buyer takes place when goods are handed over to carrier for being transported to buyer/Seller no longer remained the owner of the goods mainly because the purchase order shown dispatched at his risks. Reliance was also placed on Order No. 59/1/2003CX dated 3.3.2003 circulated by Ministry of Finance & Company Affairs h .....

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nclusion is not sustainable. 2.3 The SCN was adjudicated and the proposed demand was confirmed with equal amount of penalty under section 11 AC of the Act and further penalty of ₹ 10,000/- was imposed under Rule 25 of CER. 3. Being aggrieved the appellant preferred appeal before the Commissioner (Appeals) who vide the impugned order, pleased to allow the appeal on the ground of limitation observing as follow : The issue for determination in the case is whether the show-cause notice was bar .....

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liberately mis-used the provisions of Central Excise Rules with a view to avoid detection. It has not been specifically pointed out as to what were the facts which were suppressed by the appellant justifying the invocation of the extended period of limitation. On the contrary, the appellant have submitted two letters dated 11.09.2001 and 30.11.2001 addressed to the Assistant Commissioner of Central Excise Division II, Allahabad with a copy to the Superitendent, Central Excise Division II, Naini, .....

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ena of decision that there is no suppression of facts, if facts, which are not required to be disclosed , are not disclosed. Since the demand is not sustainable on the grounds of limitation, I do not want to go into the merit of the case.. As such, I fully agree with the contention of the appellant that since the copy of the contracts were supplied to the Department, the charge of suppression of the facts are not established and the demand invoking extending period of limitation is time barred. .....

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he assessable value while making the delivery at FOR destination. The plea taken by the assessee that they submitted two letters to the Department enclosing the purchase orders, are not sufficient grounds to allow the appeal on the ground of limitation as the assessee never disclosed that they would not be including freight and insurance charges in the assessable value. Further, reliance was placed on the rulings in the cases of I.A.E.C.Brokers Private Ltd. Vs. Collector of Central Excise : 1990 .....

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