TaxTMI 
TaxTMI 
2019 (1) TMI 899
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....he extent that penalty imposed was reduced to 50% under the provisions of Section 11AC(1)(c) of the Central Excise Act, 1994 (hereinafter referred to as 'Act') with effect from 18.4.2011. 2. Briefly stated, the facts of the case are that the appellant is a limited company engaged in the manufacturing of supercera ceramic fibre falling under Chapter heading 69039030 of the first schedule to Central Excise Tariff Act, 1985. The appellant was issued two show cause notices dated 10.3.2016 on the ground that they were selling their finished goods from the factory gate as well as from the depot. In the case of depot sale, the appellant has shown the amount of freight on invoice separately and recovered the same from depot but failed to included ....
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....n charges were required to be discharged under the provisions of Central Excise Act. (b) In the second mode of sale depot of the appellant procured the order for various projects from customers falling in their jurisdiction. The jurisdictional depot procure the order from the customer and owns the responsibility of supplying the goods for their project as per order of customers. Accordingly, the concerned depot of the appellant places the order on the unit of the appellant at their plant at Pithampur, indicating the bifurcation of price, excise duty on the basis of the order placed by the customers. Thus the assessable value of the product is the price at factory gate. The transportation charges are charged on actual basis. In such cases t....
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....s cleared to the independent factory gate. Ld. Commissioner (Appeals) confirmed the demand by treating the place of removal in both the cases to be depot. Accordingly, on the basis of explanation to Rule 5 of Central Excise Valuation Rules, 2000 concluded that freight charges are liable to be added in the assessable value. The appellant sought price charged to their various customers at the factory gate as well as for the project cleared from the depot. It is seen from the price list that the submission of the appellant that they are charging the price ex. factory is more or less the same to that which are being charged at the depot for these projects site. (d) Demand raised on the freight charges shown separately on the invoices by the ap....
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....red. Intention of the parties are to be ascertained with reference to the terms of the contract, the conduct of the parties and the circumstances of the case. Unless a different intention appears; the rules contained in Sections 20 to 24 are provisions for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Section 23 provides that where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Suc....
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....re no such objection were raised in past. Thus, the practice followed by the appellant was in the knowledge of the department and the extended period of demand of the duty under Section 11A of the Central Excise Act is not invokable. In this regard, the reliance was placed on the judgement delivered by Hon'ble Supreme Court in case of M/s Pragati Concrete Products (P) Ltd. Vs. CCE - 2005 (183) ELT 487 (Tri.-Bang.). The decision of the Tribunal was challenged by the department before the Supreme Court and Hon'ble Supreme Court dismiss the departmental appeal as reported 2015 (322) ELT 819 (SC). It was also submitted that in the case of Arviva Industries (I) Ltd. Vs. CCE - 2005 (179) ELT 506 (Tri.-Mum.) that if the records of the appellant ha....