TMI Blog2019 (1) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... ustomer in view of the decision cited supra, the same is not includible in the assessable value. Extended period of limitation - Held that:- It is on record that the demand has been raised as per the audit objection and the entire activity of appellant was known to the department - in this case the entire demand is also time barred as the extended period is not available to the department. Appeal allowed on merit as well as on limitation. - Appeal No. E/51477/2018-DB - Final Order No.53489/2018 - Dated:- 7-8-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Shri Pachanadhan, Advocate, Shri C.L. Dangi, Advocate - for the appellant Ms. Tamana Alam, D.R. - for the respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant. Vide the impugned order the Commissioner (Appeals) has passed the order modifying the order passed by the primary adjudicating authority. 3. Ld. Advocate on behalf of the appellant submits that the ld. Commissioner (Appeals) has erred while passing the impugned order on the ground that he has not followed the departmental instruction while confirming the demand. The departmental instructions are binding on the departmental authority, for which reliance was placed on CCE Vs. Dhiren Chemicals - 2002 (139) ELT 3 (SC). The department vide circular clarified the issue regarding inclusion of freight charge. 4. It was also submitted by the ld. Advocate that the appellant were selling their products in following ways: (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. (c) In some of the cases in absence of order from customers the goods were sent to the depot for further sales. In such cases care was taken that the price of the goods remained the same or higher than the price which were for the goods sold at the factory gate. It is the version of the department that the appellant had contravened the provisions of Rule 5 and Rule 7 of Central Excise Valuation Rule, 2000 read with Section 4 of the Act. Inasmuch as the appellant while selling their goods through depot, have shown the freight amount separately and recovered the same from the depot but failed to include the same for the purpose of discharge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (e) Further, the reliance was placed on the CBEC Circular No. 988/12/2014-CX. dated 20.10.2014 (supra) wherein para 5 it is clarified as under : It may be noted that there are very well laid rules regarding the time when property in goods is transferred from the buyer to the seller in the Sale of Goods Act, 1930 which has been referred at paragraph 17 of the Associated Strips case reproduced below for ease of reference: 17. Now we are to consider the facts of the present case as to find out when did the transfer of possession of the goods to the buyer occur or when did the property in the goods pass from the seller to the buyer. Is it at the factory gate as claimed by the appellant or is it at the place of the buyer as alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is deemed to have unconditionally appropriated the goods to the contract. (f) It was also contested by the ld. Commissioner finding that the contention of the appellant regarding confirmation of duty of ₹ 1,44,998/-, I find that the appellant have not put forth the copy of purchase order and invoices elaboration the facts that how the goods are sold at factory gate is not correct. (g) It was also submitted that in this case the entire issue was known to the department and there is no suppression of any fact by them so as to attract the provisions of Section 11A of the Central Excise Act. The demand was raised after the audit objection. Prior to the audit objection the assessee unit have always been subjected to previous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order and submits that the Commissioner (Appeals) has given detailed order regarding the inclusion of freight amount charged separately in the assessable value as per Central Excise Valuation Rules, 2000 and the same is, therefore, required to be upheld in appeal. 6. We have heard the parties and considered the appeal records carefully. 7. The issue involved in this case is regarding inclusion of freight charges borne by the customer of the appellant separately in the assessable value as per the CVR, 2000. The appellant assessee are having two streams of the sale one at the factory gate and other to the various projects undertaken by them for which the sale is made through depot. It is on record that all such cases the freigh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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