TaxTMI 
TaxTMI 
2018 (12) TMI 5
X X X X Extracts X X X X
X X X X Extracts X X X X
..../75706/2018 dated 09.07.2018 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata (hereinafter referred to as "CESTAT"). 2. Vide order impugned dated 12.03.2018, the appeal of the appellant has been dismissed on merits by CESTAT but in absence of the appellant. Thereafter, the appellant has filed an application for restoration which has been 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 08.07.19....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in the appeal, as such, has remained to be determined because the application has been dismissed on the ground that the appeal has been dismissed on merits. 6. While admitting the instant appeal, following two substantial questions of law were formulated:- "1. Whether under the Central Excise Act, 1944 and rules framed there-under, transportation and insurance 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 sel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....venue that the cost of transportation and insurance are not to be included in assessable value because goods are sold at the factory gate which is the 'place of removal' within the meaning of Section 4 of the Act. 9. In the judgment rendered by the Hon'ble Apex Court in the case of "Commissioner of Central Excise, Noida v. Accurate Meters Ltd." reported in 2009 (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 Ind....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f "Commissioner of C.EX., Mumbai-III v. EMCO Ltd. reported in 2015 (322) E.L.T. 394 (S.C.). Para 11 of the reported judgment is advantageous to be quoted:- "11. "Place of removal" is the place or premises from where the excisable goods are to be sold after their clearance from the factory and from where such goods are removed. Thus, 'place of removal', 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 tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 13. There is no quarrel on the legal position to the effect that when the appellant remains absent, 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 sam....