TMI Blog2017 (7) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case where depot is place of removal after 14.05.2003) is to be included in the assessable value - the transportation/freight charges in show cause notice for the period 14.05.2003 to 31.03.2004, 2004-2005, 2005-2006 and 2006-2007 are liable to be included in the assessable value. However, for the period prior to 14.05.2003 when the definition of place of removal in Section 4 of Central Excise Act, 1944 did not include depot as place of removal, the place of removal will be factory gate and for this period, the transportation/freight charges would not be includible in the assessable value. Valuation - differential pricing - Held that: - the Ld. Commissioner (Appeals) has not given any findings. The Ld. Commissioner (Appeals) is therefore required to examine the issue afresh after giving fair opportunity to the appellants to make their submissions - matter on remand. Commission paid to commission agents - extended period of limitation - The appellants have argued that since the issue of depot sale was in the knowledge of the Department, the show cause notice is barred by limitation - Held that: - there is sufficient ingredient available on the part of the Respondent for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount is remitted to the appellants. Regarding inclusion of transportation cost, ld. Consultant relied upon the Board Circular No.251/85/96-CX dt. 14.10.1996 and stated that duty was required to be paid on the value of the goods prevailing at the time of their clearances from their factory to such consignment agents premises. He also argued on limitation and stated that the show cause notice for the period 2002-2003 to 2006-2007 had been issued on 21.02.2008 and the same was barred by limitation. He contended that there was no suppression or intent to evade the duty in the present case as previous show cause notices had also been issued on the same issue and the issue was within the knowledge of the Department. He also contended that the Department did not file any appeal against the Order-in-Appeal No. 88/PAT/C.Excise/Appeal/2004 dt. 12.03.2004. Hence, the order has reached finality and the Department had accepted the said order of ld Commissioner (Appeal). 4. Ld. AR for the Revenue reiterated the findings in the order of Ld. Commissioner (Appeals) and defended the order both on merits and limitation. He pointed out that the definition of place of removal in Section 4 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here freight is averaged, the cost of transportation calculated in accordance with generally accepted principles of costing. Explanation 2. - For removal of doubts, it is clarified that the cost of transportation from the factory to the place of removal, where the factory is not the place of removal, shall not be excluded for the purposes of determining the value of the excisable goods. Hence, in terms of the explanation 2 to Rule 5, the cost of transportation from the factory to the place of removal where factory is not the place of removal (like in the present case where depot is place of removal after 14.05.2003) is to be included in the assessable value. It is also clear from the above mentioned amendments that on and after 14-5-2003, the position in respect of depot as place of removal was reinstated as it obtained from 28-9-1996 to 1-7-2000. Rule 5 as substituted in 2003 also confirms the position that the cost of transportation from the factory to the place of removal is to be included where the factory is not the place of removal. Same view was also taken in Century Laminating Co. Ltd. Vs. CCE, Meerut-II - 2013 (288) ELT 276 (Tri. Del) where the period w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of removal, the place of removal will be factory gate and for this period, the transportation/freight charges would not be includible in the assessable value. As to the contention of the appellant about order of the Ld. Commissioner (Appeals) dt. 12.03.2004, the same pertained to issue of differential value; besides, the adjudication order therein was set aside on ground of limitation. Hence, the same does not help the appellant. Issue No. (ii) On the issue of differential pricing, the Ld. Commissioner (Appeals) has not given any findings. The Ld. Commissioner (Appeals) is therefore required to examine the issue afresh after giving fair opportunity to the appellants to make their submissions. Issue No. (iii). The appellants have contended that the amount of commission was included in the value of the goods, hence, commission could not be included. We find that this has not been controverted by the Revenue. Hence, the demand for the same cannot be sustained as has been held by the Tribunal in the appellants own case Shakti Tubes Ltd. Versus CCE, Patna - 2007 (217) E.L.T. 96 (Tri. - Kolkata). 7. The appellants have argued that since the issue of depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red figures on 08.02.2008. I find that in response to the summon dt. 06.02.2008, they submitted some documents and figures on 08.02.2008 and rest documents and figures on 11.02.2008. I find that the Respondent has raised the issue regarding various means can be undertaken by the department to dig out truth by enforcing search raids in the factory as well as in the offices of the manufactures their consignment agents/depots etc. but the Respondent has failed to understand that being a central excise manufacturer, they are under statutory obligation to disclose every information/documents to the Central officer under Rule -22 of the Central Excise Rules, 2002. In the present case, though the Respondent has passed on information/documents but in planned manner i.e. disclosing part by part information so as to prolong the ongoing investigation carried out by the department. As such, I find that there is sufficient ingredient available on the part of the Respondent for deliberate withholding the information in suppression of facts with malafide intention to evade Central Excise Duty. Therefore, I find nother wrong in invocation of extended period of limitation in view of delibe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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