TMI Blog2017 (2) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... .B. Shroff, Sr. Advocate for the appellant Shri Ajay Kumar, Jt. Commissioner (A.R.) for the respondent Per: C J Mathew: Appellant, M/s AB Mauri Pvt Ltd are manufacturers of yeast and related products falling under heading 2002 of the Schedule of the Central Excise Tariff Act, 1985 and effect sales at factory gate as well as under contract to two distributors viz. Cyrus Yeast and Continental Stores. For sales under contract, basic price, duties and taxes and other charges were the consideration. The basic price is claimed to include packing in 3-ply boxes while other charges include octroi and turnover tax, insurance and secondary packing specifically sought by customers. The goods sold at factory gate were supplied in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold the same. 6. Learned Senior Counsel made detailed submissions claiming that the demand show cause notice dated 1 st October 1993 was barred by limitation and that the demand for the period from 1 st September 1988 to 31 st March 1993 was not liable to be recovered under section 11A of Central Excise Act, 1944. We will advert to these only if required after examining the submissions on merit. 7. It is the claim of the appellant that recoveries of freight from customers is less than the amount expended; deduction from sale price for arriving at the price declared under rule 173C of Central Excise Rules, 1944 is the equalized freight. The recovery of excess freight has been challenged by relying on the decision of the Hon ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s proved otherwise, be deemed to be in addition to price as consideration for sale. We hold these component to be liable for inclusion in assessable value and direct the assessing authority to compute the actual recovery after ascertainment of freight attributable to trips used, on return journey, for carriage of goods belonging to appellant and after giving due allowance for recoveries from customers that are evidenced as matching the actual freight incurred. 9. On the issue of enhancement of assessable value to conform to the price charged from Continental Stores as the base value, it was contended on behalf of the appellant that contract price with both the bulk purchasers are specifically negotiated and hence unique to the two entiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved with full awareness of details and that it was for the assessing officer to call for details in the event of doubt. That contention cannot be faulted but to expect the assessing officer to divine the business practice of an assessee is far-fetched. The use of returning trucks will not be reflected in the normal records and it is only the primary records of receipt of goods that would elicit this information. Likewise, there is no reason to suspect a value declaration and any recovery of excess amount is attributable to suppression. The contention that demand is barred by limitation is, therefore, not acceptable. 12. The appellant is liable to duty on the actual usage of returning trucks which needs ascertainment. On the issue of f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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