9911796707
TMI Blog2012 (7) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of removal of goods under assessment. the invoices supplied by the respondent regarding sale at the time nearest to the date and time for removal of the goods from factory to the depot normal transaction value of the goods was much more than the rate at which the excise duty was paid at the time of clearance of goods from the factory and the appellants submitted all the relevant documents including depot invoices which are indicative of the price at depot sale. Duty being advalorem is proportionately reduced with the fall of price at the depot. As a result the appellants have to bear the burden of excess duty paid on the ex-factory value of the goods that is higher than the actual transaction value - though Commissioner (Appeals) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he jurisdictional Assistant Commissioner vide order dated 01.02.2010 dismissed the refund claim. 3. Being aggrieved of the order of jurisdictional Assistant Commissioner, respondent preferred appeal and the Commissioner (Appeals) allowed the appeal of the respondent and held that the respondent was entitled to refund of the duty paid in excess by him at the time of clearance of the goods from the factory to the depot. 4. Feeling aggrieved by the aforesaid order, the department has approached the Tribunal. 5. Sh. Nagesh Pathak, ld. AR has pleaded that the impugned order is not sustainable for the reason it has been passed on incorrect reading of Rule 7 of Central Excise (Valuation) Rules. Thus, he has pressed for setting aside of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at or about the same time and, where such goods are not sold at or about the same time, at the time nearest to the time of removal of goods under assessment . 8. On bare reading of the aforesaid rule, it is seen that in the cases where the goods are not sold by the assessee at the factory gate but are transferred to depot from where the excisable goods are to be sold the transaction value of such goods cleared from depot for the purpose of excise duty shall be the rate at which goods are sold from such depot on or about the same time and if such goods are not sold at or about the same time, at the time nearest to the time of removal of goods under assessment. Admittedly, in the instant case the goods in question were removed from the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and contrary to legal provisions under Rule 7 of the Valuation Rule 2000. The Rule 7 provides that under the circumstances of the case the normal transaction value of any consignment may often have to be ascertained from the depot price prevailed even before its clearance from the factory. Only requirement under the law is to ascertain the value of depot sale at the time of ex-factory clearance, and if it is impossible, the value is, at the time nearest to the time of ex-factory removal. Accepting the payment of short paid duty by the appellants the department has tacitly accepted the impossibility of ascertaining the normal transaction value only at the time of ex-factory clearance. Further, the appellants submitted all the relevant docum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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