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TMI Blog2011 (7) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... lace as place of removal, during this period the price charged at consignment agents place cannot be considered as a price from the place of removal for adding into assessable value - Held that: the appellant has been taking consistent stand before the lower authorities that there is no evidence that the price shown for clearance from factory gate was vitiated As regards the demand for the period from 28-9-1996 to 28th February, 1997, it is undisputed that the provisions of amended Section 4(4)(b) were applicable and the premises of the consignment agents was also considered as place of removal - Held that: the appellants should have discharged duty liability on the clearances to consignment agent based upon the price charged by and at co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignments, it could be less. It was also argued during personal hearing before the adjudicating authority, there may not be any addition to the sale price at the factory gate, when such price is available as per provisions of law i.e. Section 4 of the Central Excise Rules [(sic) Act], 1944 then in force. The adjudicating authority was not convinced by the arguments putforth by the appellants. The adjudicating authority confirmed the demand and imposed equal amount of penalty and also demanded interest. 3. Against such order, the appellants are represented by Dr. Samir Chakraborty, ld. Advocate. 4. The ld. Advocate submits that the demand can be bifurcated into two periods. It is his submission that the 1st period will be 1st March, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the value on which the duty liability has to be enforced. 7. Ld. DR on the other hand argues and defends the order-in-original. It is his submissions that in this case for the entire period in question, the consignment agents have prepared the sale patties; from random samples of the sale patties taken from one of the consignment agent clearly indicates that an amount which is in excess than the value of the goods cleared is given back to appellant. It is his submissions that it is very clear that the appellant was benefited from the said amount which has been given by the consignment agents and it was additional consideration. It is his submissions that the concept of normal price as envisaged under Section 4 of the Central Excise Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods with reference to value, such value, shall, subject to the other provisions of this section, be deemed to be - (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale 11. It is also seen that the said provision of sub-section (4) as regards the definition of place of removal is as under : (4) For the purposes of this section,- (a) assessee means the person who is liable to pay the duty of excise under this Act and includes his agent; (b) place of removal means - (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Vidarbha Veneer Industries Ltd. (supra). This point is not rebutted in the order-in-original in any way. There cannot be any duty demand as such amount. The decision relied upon by the ld. DR does not carry the Revenue s case any further, as in those cases there was an evidence in form of admission of receipt of an amount from the consignment agents over and above the invoices. In view of the foregoing, in our considered view, the demand for the period 1-3-1994 to 27-9-1996 is unsustainable and is liable to be set aside and we do so by following the ratio of the Hon ble Apex Court s decision in the case of Century Laminating Co. Ltd. (cited supra). As the demand is set aside, there is no question of penalty or interest for this period. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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