2006 (4) TMI 323

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....t to the manufacturing area. These waste products were sold by the appellant by inviting open tenders. The conditions of the same inter-alia, has been "as is where is basis". 2. The appellant paid excise duty on the said contract price as was followed by them previously when the Excise duty was leviable on such waste products. The department thereafter raised objections to such method of determination of assessable value and assessment in the year 2000. The department's contentions was that even though as the sale is on "as is where is" basis and the loading charges of such waster products were borne by the contractor, the cost of such loading charges ought to have been included in the assessable value of the waste products. Accordi....

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....arges does not arise. They placed their reliance on the decision in the following cases. (a)     CCE, Aurangabad v. Kada S.S.K. Ltd. [2004 (170) E.L.T. 471 (Tri-Mumbai)]. (b)     OCP India Pvt. Ltd. v. CCE & C, Bhubaneshwar [2003 (156) E.L.T. 378 (Tri-Kolkatta)]. (c)     Pace Marketing Specialities v. CCE [2003 (153) E.L.T. 621]. (d)    CCE v. Godavari Manar SSK Ltd. [2003 (158) E.L.T. 663 (Tri)]. 3. On limitation it was submitted that the appellants have been clearing these products from the very inception of the company on the same terms and conditions and they had filed price list from the year 1989 and 1998 which have been approved by the depa....

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....nd since the goods were loaded from within the factory premises the same are includable in the assessable value and cited the Supreme Court decision in the case of Indian Oxygen Ltd. v. Collector of C.E. [1988 (36) E.L.T. 723 (S.C.)] wherein it was held that so far as the loading charges incurred for loading the goods within the factory are concerned they are to be included in the assessable value irrespective of the fact who has paid for the same but the loading charges incurred outside the factory gate are excludible. 7. On limitation it was submitted that non filing of the correct price declaration is wilful mis-representation as has been held by the Madhya Pradesh High Court in the case of Procter & Gamble Hygiene & Health Care ....