TaxTMI 
TaxTMI 
TaxTMI 
2023 (9) TMI 10
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....her the forwarding and freight charges is includible in the assessable value of excisable goods for the purpose of charging excise duty. 2. Shri Vipul khandhar, Learned Chartered Accountant appearing on behalf of the Appellant at the outset submits that the entire demand is under extended period, therefore, the same is liable to be set aside on the ground of limitation 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 valu....
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....ssable value would be the transaction value without the addition of case of transportation. Rule 5 of the Central Excise Valuation Rules reads as follows : "Where any excisable goods are sold in the circumstances specified in clause (a) of sub-section (1) of Section 4 of the Act except the circumstances in which the excisable goods are sold for delivery 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 cos....
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..... CCE - 2004 (178) E.L.T. 948 (Tri.-Mum.)" 4.2 From the above decision in the appellants own case, it is seen that the 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 - 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 ....
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....f duty for the larger period by invoking proviso to Section 11A of the Act. So far as the assessee is concerned, it has all along been contending that they were not related persons, so, it cannot be said to be guilty of not filling up the declaration in the prescribed proforma indicating related persons. The necessary 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 ....
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.... it is for them to show that that Show Cause Notice was not relevant and was not applicable. The Department has not brought any of those facts on record. Therefore, the Department cannot now urge that findings of the Collector that that Show Cause Notice was on a similar issue and for an identical amount 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 take....