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TMI Blog2009 (7) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... Before the withdrawal of this facility, the applicants were clearing Motor Spirit (MS) and High Speed Diesel (HSD) from their refinery to their depots/terminals without payment of duty under bond. Parts of these products were added with different types of additives, for example, Octane Booster also known as multi-functional fuel additives and branded as MS-Speed, Speed 93, Speed 97 and HI-HSD. All these products, whether without adding the multi-functional fuel additives or with addition of multi-functional fuel additives, were sold from their depots/installations. The duty was being paid by the applicant based on the transaction value of each of the different products from their depots/installations, as determined at the time of sale from such depots/installations. So the applicant was paying Central excise duty on the higher value of MS Speed, Speed 93 etc. (as realized from their buyers) and on lesser value of normal MS/HSD (as realized from their buyers). After the withdrawal of the said facility of warehousing w.e.f. 6-9-2004, the applicant started payment of Central excise duty on the impugned products viz. MS-Speed, Speed 93, Speed 97 and HI-HSD based on the sale price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house 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; from where such goods are removed; (cc) time of removal , in respect of the excisable goods removed from the place of removal referred to in sub-clause (iii) of clause (c), shall be deemed to be the time at which such goods are cleared from the factory; (d) transaction value means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commissioner or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rohtak [2009 (234) E.L.T. 648 (Tri.-Del.)]. The ld. Counsel further took us to the decision of Savita Chemicals Ltd. v. C.C.Ex. [2009 (119) E.L.T. 594 (Tri.)] to canvass a point that price/value of oil packed in containers of different sizes at depot shall not apply to the value of bulk oil cleared from the factory and in the impugned case also the price of branded impugned goods will not be applicable to the clearance of unbranded MS and HSD. Similarly, he further drew our attention to the case law in the matter of Borosil Glass Works Ltd. v. CCEx [2002 (147) E.L.T. 396 (Tri.-Mum.)], wherein, the Hon ble Tribunal held that the price at which decorated glasses sold at depot cannot be applied to plain glasses removed from the factory gate as goods are different and are not such goods for the purpose of determining the assessable value in terms of Section 4(l)(a) of the CE Act. He further submitted that in the case of Rashtriya Ispat Nigam Ltd. v. CCEx [2005 (179) E.L.T. 65 (Tri.-Bang.)], it was held that the goods cleared from factory gate were iron and steel products whereas those cleared from stock yards were goods subjected to cutting and bending - since goods cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods are being sold after their clearance from the factory. He further, contended that the clause (cc) of sub-section (3) of Section 4 in relation to the deemed time of removal is rot applicable in the present case as admittedly the goods cleared from the factory are not the same, which are sold from the depot/installations. He especially brought this provision to our attention, though not mentioned by the ld. Counsel, to submit that sub-clause (cc) is a deeming provision and will apply only to such goods cleared from the factory. The ld. SDR further submitted that the case laws cited by the ld. Counsel for the applicant, in fact, support the case of the Department. He meticulously took us to Paras 29 to 32 of the decision of the Tribunal in Savita Chemicals case (supra) to support his contention that the Tribunal has held that oil packed in containers of different sizes are not the such goods, if compared to bulk oil, that is precisely the Department has found in the impugned case that the MS and HSD cleared from the factory and then mixed with fuel additives resulting in the impugned goods viz. MS-Speed, Speed 93, Speed 97 and HI-HSD are not the same. The Department is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case. 7. In his rejoinder, the ld. Counsel further submitted that there is change in the application of legal provision for valuation of impugned goods after the withdrawal of the warehousing facility. He pointed out the provision contained in Clause (c)(ii) of Sub-section (3) of Section 4 of the Act to contend that this provision was applicable before the withdrawal of the warehousing facility and Clause (c)(iii) of Sub-section (3) of Section 4 of the Act is applicable after the withdrawal of the said facility in the present case. He also contended that the Case Law mentioned by the ld. SDR supports the case of his client. 8. We have considered the above submissions of the ld. Counsel and the ld. SDR and also perused the legal provisions for valuation of excisable goods. We find that the applicant was determining the assessable value of the impugned goods viz. MS-Speed, Speed 93, Speed 97 and HI-HSD under Section 4(1)(a) of the Act and adopting the transaction value for the purpose of discharging the Central excise duty. Admittedly, the process of mixing additives at depot/installation and sale thereof of such branded goods from the depot is the same, as was being don ..... 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