TaxTMI 
TaxTMI 
2026 (2) TMI 511
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....e Commissioner pursuant to SCN dt.02.11.2012 for the period October, 2007 to September, 2012 in Appeal No. E/28296/2013. They are also in appeal against the Order-in-Original dt.22.01.2014 passed by the Commissioner pursuant to SCN dt.03.10.2013 for the period October, 2012 to June, 2013 in Appeal No. E/21412/2014. 2. The facts, in brief, are that the appellants are manufacturers of cement and were selling cement packed in bags of 50 kg to dealers/ distributors as also to industrial/institutional customers directly from the factory and also through the depots. The department, inter alia, felt that the appellants were paying Excise Duty on the value, exclusive of freight, which was incurred by the appellant for delivery of goods at the pr....
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.... other than the factory, then the assessable value shall be the transaction value without the addition of cost of transportation from the factory up to the place of delivery and also relied on various judgments including Escorts JCB Vs CCE, Delhi [2002 (146) ELT 31 (SC)] and Prabhat Zarda Factory Ltd Vs CCE [2002 (146) ELT 497 (SC)]. The adjudicating authority considered the statutory provisions and, inter alia, held that based on perusal of specimen copy of invoices and purchase orders, the rate mentioned in the purchase orders is inclusive of loading, transportation charges, all taxes and therefore, when the appellant was collecting the entire and exact amount quoted in the purchase order besides showing freight separately in the invoice ....
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....,34,476/- was confirmed along with interest and equal penalty under section 11AC. In Appeal No.E/21412/2014, demand of excise duty of Rs.4,08,18,405/- was confirmed along with interest and penalty of Rs.1,36,00,000/- under section 25(1) of Central Excise Rules, 2002. 4. Learned Advocate for the appellant is mainly contesting that the issue is essentially revolving around the fact as to what would be the place of removal even in the case of admitted position that the sale is on FOR destination basis. They are relying heavily on the judgment of Hon'ble Supreme Court in the case of CC & CE, Nagpur Vs Ispat Industries Ltd [2015 (324) ELT 670 (SC)], where it was clearly held that place of removal will always be the factory gate or the depot a....
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....in the facts of the case, extended period has been rightly invoked. 6. Since both appeals involve similar factual matrix, we take up both the appeals together for disposal. 7. Heard both sides and perused the records. 8. The short question for determination in both the appeals is whether the freight charges, which were being collected by the appellant from the customers, were liable to be included in the assessable value for payment of Central Excise Duty or otherwise. The admitted position in this case is that the sales are on FOR destination basis and not ex-works. This is apparent from the specimen copies of sales invoices and purchase orders submitted by the appellant along with appeal. Therefore, it is obvious that while all i....
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....etc., inter alia, held that in case where clearances of goods are against FOR contract basis, the authority needs to ascertain the place of removal by applying the judgments of the Hon'ble Supreme Court in Emco Ltd (supra), Roofit Industries Ltd (supra), the decision of the Hon'ble Karnataka High Court in Bharat Fritz Werner [2022 (7) TMI 352 (Kar.)] and the Circular dt.08.06.2018 of the Board to determine the admissibility of Cenvat credit on the GTA service up to the place of removal. We also note that there is no definition of place of removal during the relevant time under Cenvat Credit Rules, 2004 and hence the same was adopted from parent Act i.e., section 4 of Central Excise Act. 9. In the case of Pawan Power & Telecom Ltd (supra)....
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.... ground that appellants had themselves given the figure of transportation cost and no other evidence was brought disputing the same. We find that if the appellants are clear that actual freight is much lesser than what actually has been taken by the department, they are well within their right to establish the same for the purpose of recomputing the duty element. Therefore, these two issues need to be remanded back for redetermination of duty liability. 10. On the issue of limitation, we find that the appellants were clearly aware of the statutory provisions and in fact, had one round of litigation as regards correct applicability of the notification as well as coverage under RSP/MRP. Despite that they had not paid the excise duty inclus....