TMI Blog2023 (9) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... lant own case earlier has come up before this Tribunal in TRANSASIA BIO-MEDICALS LTD. VERSUS COMMISSIONER OF C. EX., DAMAN [ 2012 (1) TMI 123 - CESTAT AHMEDABAD] wherein this Tribunal has set aside the demand on the ground of time bar. In the present case also somewhat the identical issue involve i.e. duty liability on forwarding and freight charges collected from the customer. In the present case the Show cause notice was issued subsequent to the period involved in the aforesaid tribunal decision. In these facts, as per the law settled by the Hon ble Supreme Court in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [ 2006 (4) TMI 127 - SUPREME COURT] the demand for the subsequent period will not sustain on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation itself. He submits that the issue involved is of interpretation of provision of Section 4 of Central Excise Act, therefore, there is no suppression of fact. Moreover, the appellant were filing regular ST-3 returns wherein the details of clearances along with the value has been declared. 2. He further submits that the same issue of inclusion of freight in the assessable value in the appellant s own case this Tribunal has set aside the demand on the ground of limitation. Therefore, in this case for the subsequent period the extended period cannot be invoked in the light of Hon ble Supreme Court Judgment in the case of Nizam Sugar Factory, therefore, the demand is not sustainable on time bar alone. 3. Shri Ajay Kumar Samota, Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very at o place other than the place of removal, then the value of such excisable goods shall be deemed to be the transaction value, excluding the cost of transportation from the place of removal upto the place of delivery of such excisable goods. Explanation 1. - Cost of transportation includes,- (i) the actual cost of transportation; and (ii) in case where freight is averaged, the cost of transportation calculated in accordance with generally accepted principles of costing. 22. With regard to the allegation that the extended period is available because of suppression/misstatement of facts with an intend to evade payment of duty the appellant argued that the allegations are baseless and untenable in law. They submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omer. In the present case the Show cause notice was issued subsequent to the period involved in the aforesaid tribunal decision. In these facts, as per the law settled by the Hon ble Supreme Court in the case of Nizam Sugar Factory 2008 (9) STR 314 (SC) the demand for the subsequent period will not sustain on the ground of time bar. The relevant para of the Apex court judgment are reproduced below:- 8. Without going into the question regarding Classification and marketability and leaving the same open, we intend to dispose of the appeals on the point of limitation only. This Court in the case of P B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in (2003) 3 SCC 599 = 2003 (153) E.L.T. 14 (S.C.) has taken the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary facts had been brought to the notice of the authorities at different intervals from 1985 to 1988 and further, they had dropped the proceedings accepting that M/s. Pharmachem Distributors was not a related person. It is, therefore, futile to contend that there has been suppression of fact in regard M/s. Pharmachem Distributors being a related person. On that score, we are unable to uphold the invoking of the proviso to Section 11A of the Act for making the demand for the extended period. This judgment was followed by this Court in the case of ECE Industries Limited v. Commissioner of Central Excise, New Delhi reported in (2004) 13 SCC 719 = 2004 (164) E.L.T. 236 (S.C.). In para 4, it was observed : 4. In the case of M/s. P B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is not correct. 9. Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that there was no suppression of facts on the part of the assessee/appellant. 10. For the reasons stated above, Civil Appeal Nos. 2747 of 2001 and Civil Appeal No. 6261 of 2003 filed by the assessees are accepted and the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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