TMI Blog2018 (12) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was to be made by the customers after receipt of material(s) and testing/final approval with a condition that if the materials were not found as per the ordered specification, same will be rejected and lifted back by the appellant at his own cost. Therefore, in such a situation, place of removal is at the place of buyer on the delivery of goods subject to the satisfaction of specification and testing. Keeping in view the reasons for non-appearance before the CESTAT on 12.03.2018 coupled with the stand of the appellant that the Commissioner (Appeals) which was the last court of appeal for reappreciating the factual aspect has not appreciated the factual aspect in its right perspective same was pertinently to be looked into by the CES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dismissed vide order dated 09.07.2018 on the ground that the appeal has been dismissed on merits. 3. The appellant is engaged into manufacture and sale of goods, is registered dealer under the Meghalaya Value Added Tax as well as under the Central Excise Act, was availing exemption/refund of the excise duty under the notification No.32/99-CE dated 08.07.1999. During the course of audit by the Central Excise Officers, it was noticed that during the period from 16.07.2003 to 31.03.2005, the appellant had included the cost of transportation and insurance charges for the purpose of valuation in contravention to the provision of Section 4 of the Act read with Rule 5 of the Central Excise Valuation (Determination of Price of Excisable Goods) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges stand included in the assessable value of goods? 2. Whether there is scope for taking into account the intention of the parties in the context of Section 4(3)(d) i.e. transaction value ? 7. In terms of Section 4 of the Act place of removal is the determinative factor for the purpose of valuation. It is projected by the appellant that the appellant used to sell Ferro Silicon (goods) to various customers and one of the terms of the sale was that the charges of freight (outward handling like transportation and insurance) stood included in the sale price, whereas in some cases, sale was subject to inspection to be done by the customers at their end. In some cases, payment was to be made by the customers after receipt of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (235) E.L.T. 581 (S.C.), it has been emphasized that place of removal depends on the facts of each case. The principle laid down in the said judgment has been followed in the subsequent judgment. In this behalf learned counsel for the appellant has placed reliance on the judgment rendered by the Hon ble Supreme Court in the case of Commr. of Cus. C.EX., Aurangabad v. Roofit Industries Ltd. reported in 2015 (319) E.L.T. 221 (S.C.) . Paras 11 and 12 of the reported judgment are advantageous to be quoted:- 11. In Commissioner of Central Excise, Noida v. Accurate Meters Ltd.- (2009) 6 SCC 52 = 2009 (235) E.L.T. 581 (S.C.), the Court took note of few decisions including in the case of Escorts JCB Ltd. and reiterated the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moval , in a given case becomes a crucial determinative factor for the purpose of valuation. In the present context, if it is found that transportation charges and transit insurance charges were incurred after the place of removal , then they are not to be included. On the other hand, if these charges are incurred before the place of removal then they are to be included while arriving at the transaction value. Again, in the context of the present case, what is to be determined is as to whether the place of removal was the factory gate of the respondent or it was the premises of the purchaser at the time of delivery of these goods . 11. In view of the factual ground projected by the appellant to the effect that the place of removal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsent, the appeal has to be decided on merits not to be dismissed otherwise. But the question is as to whether the appellant had been given reasonable opportunity, he has categorically stated that he received the notice issued by CESTAT, Kolkata at Shillong on 10.03.2018 whereas, the case was heard by the Tribunal (CESTAT) at Kolkata on 12.03.2018, that is why he had moved an application on the same ground for restoration of the appeal. While rejecting his application, the stand of the appellant that he had received the notice on 10.03.2018 has not been refuted. 14. Keeping in view the reasons for non-appearance before the CESTAT on 12.03.2018 coupled with the stand of the appellant that the Commissioner (Appeals) which was the last cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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