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TMI Blog2002 (5) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals), New Delhi, is whether the freight and insurance charges are to be included in the assessable value of mobile cranes. 2. Shri K.L. Handa, learned Consultant, mentioned that the Appellants manufacture hydraulic mobile cranes; that the Dy. Commissioner in six Adjudication Orders confirmed the demand and imposed penalty on the ground that they had taken insurance policy in their names for delivery of mobile cranes at the destination of buyers place and as such place of removal of the excisable goods would be the place where the property in the goods was passed to the buyer following the decision in the case of Escorts JCB Ltd. v. CCE, 2000 (118) E.L.T. 650 (T) = 1999 (35) RLT 9 and CCE, Meerut-II v. Prabhat Zarda Factory Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient to bring the issue of show cause notice within the jurisdiction of an officer other than a Deputy Commissioner in terms of Board s instruction dated 27-2-97 as amended by Instruction dated 13-8-97; that the Adjudicating Authority had also given his findings as to why penalty under Section 11AC of the Act could not be imposed and interest under Section 11AB could not be demanded which goes to show that according to him, the ingredients of proviso to Section 11A(1) of the Act were present. He relied upon the decision in the case of CCE, Ahmedabad v. Omkar Textile Mills (P) Ltd., 2000 (124) E.L.T. 384 (T) = 1999 (32) RLT 156 (CEGAT). 4. The learned Consultant, further, submitted that the decision in the case of Escorts JCB is not appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t best be an administrative irregularity and cannot be treated as legal infirmity. The learned SDR, further, submitted that on merit, the freight and insurance charges are to be included in the assessable value as the facts are at par with the facts in the case of Escorts JCB Ltd.; that the premium has been paid for the insurance by the Appellants themselves; that when the goods are insured by the manufacturer up to the buyer s premises, buyer s place and not the factory gate is the place of removal and the price at the buyer s place will be relevant for determining the assessable value of the goods. She relied upon the decision of the Larger Bench of the Tribunal in the case of CCE v. Prabhat Zarda Factory Ltd., 2000 (119) E.L.T. 191 (T-LB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le goods; (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty, (iii) a depot, premises of a consignment agent or any other 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. 7. The Larger Bench of the Tribunal in Prabhat Zarda Factory has interpreted the phrase Place of removal wherein it has been held that it is the sale that is material for deciding as what is the place of removal for the purpose of Clause (iii) of Section 4(4)(b) of the Act.. ..the place of removal for the above purpose will be the place from where the transfer of the possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the need to mention in insurance notes on behalf of consignee could not be there. The facts in the case of Prabhat Zarda were different since the goods therein were transported on account of Prabhat Zarda Factory Ltd. to the destination of the buyers through the transport agency. The goods were stored on Prabhat Zarda s behalf in the godown of the transport agency at the destination of the buyers. It is clearly mentioned in the decision that Prabhat Zarda were both the Consignor and the Consignee . It was duly observed by the Larger Bench that the goods were delivered to the buyers by the transport agency only when so instructed by M/s. Prabhat Zarda. On the basis of such facts, which are not brought on record in the present matters, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 11A(1) provides clearly that a Central Excise Officer may serve notice on the person chargeable with the duty. The decisions in the cases of O.N.G.C. and Omkar Textiles Ltd. pertained to the period when proviso to Section 11A(1) of the Act clearly provided that notices have to be issued by the Collector of Central Excise. This is apparent from the Section 11A(1) extracted in the case of O.N.G.C. Accordingly we hold that there was no infirmity either in the show-cause notice or in the Adjudication Order. However, as on merit we have held in favour of the assessee, there is no need to remand the three appeals to Commissioner (Appeals) for deciding these appeals on merits. The assessee is, therefore, not liable to pay any duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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