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2019 (5) TMI 1018

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..... t. The insurance of the goods was covered by the appellant up to the place of delivery of the goods. As per the impugned order, the entire emphasis was given that the place of removal is the place of delivery, which is the premises of the buyer of the goods therefore, all the expenses including the insurance, freight etc are includable in the transaction value. When the facts were clear that goods cleared from the factory for sale, even though on FOR basis, the place of buyer cannot be the place of removal in such case the factory from where the goods were cleared for sale is the place of removal. Accordingly, the freight charges is not includable in the assessable value in terms of Rule 5 of Central Excise Valuation (Determination of Price .....

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..... hat, appellant is required to include the transportation charges for determining the transaction value for levy of excise duty which they have failed to do so. Accordingly, the differential duty demand was confirmed. Therefore, the present appeal. 2. Shri Somesh Arora, Ld. Counsel appearing on behalf of the appellant submits that on the identical issue, in the same set of facts, the Hon'ble Supreme Court in the case of CCE, Nagpur vs. Ispat Industries Limited - 2015 (324) ELT 670 (SC) held that in the given facts, the goods were cleared for sale from the factory, the place of removal shall be factory gate only and not the place of delivery of the buyers. Accordingly, the transportation charges need not to be included in the assessable v .....

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..... reliance on Circular No. 999/6/2015-CX dated 28.02.2015 which states that handing over of the goods to the carrier/ transporter for further delivery of the goods to the buyer, with the seller not reserving the right of disposal of the goods, would lead to pass on of the property in goods from the seller to the buyer and it is the factory gate or the warehouse or the depot of the manufacturer which would be the place of removal since it is here that the goods are handed over to the transporter for the purpose of transmission to the buyer. 4. He further submits that the demand was wrongly made invoking extended period. The position of law in relation to point of sale was amplified by the Apex Court only in 2015 which is distinguished from its .....

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..... under Section 4 (3)(c) is reproduced below:- (c) place of removal means - (i) a factory or any other place or premises of production or manufacture of the excisable goods; (ii) a warehouse or any other place on premises wherein the excisable goods have been permitted to be deposited without [payment of duty] (iii) a depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearance from the factory;] from where such goods are removed; From the plain reading of the above definition of place of removal it is clear that either the factory or warehouse where the goods are permitted to be deposited or depot or premises of a consignment agent or any other place or premises fr .....

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..... price of the goods was inclusive of transportation charges. As transit damage on the assessee s account would imply that till the goods reached their destination, ownership in the goods remained with the supplier, namely, the assessee, freight charges would have to be added as a component of excise duty. Further, as per the terms of the payment clause contained in the procurement order, payment was only to be made after receipt of goods at the premises of the buyer. On facts, therefore, it was held that the sale of goods did not take place at the factory gate of the assessee. Also, this Court s attention was not drawn to Section 4 as originally enacted and as amended to demonstrate that the buyer s premises cannot, in law, be a place of rem .....

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