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TMI Blog2015 (1) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... e of removal”, in terms of its definition given in Section 4(3)(c) cover only the factory or warehouse where the goods have been permitted to be deposited without payment of duty and from where such goods are removed. It is only with effect from 14-5-2003 that clause (iii) was added to Section 4(3)(c) of the Central Excise Act, 1944 so as to include “depot, premises of the consignment agent or any other place or premises from where excisable goods are to be sold after their clearance from their factory”, within the definition of “place of removal”. But during the period from 1-7-2000 to 13-5-2003, the depot or consignment agent’s premises were not included in the definition of “place of removal”. Therefore, during the period till 13-5-2003, the freight expenses from the factory gate to depot would not be includible in the assessable value of the goods and duty demand on this count would not be sustainable. It is only with effect from 14-5-2003 that the “depot” had also been included in the definition of “place of removal” and accordingly w.e.f. 14-5-2003 only, the freight expenses from the factory to depot would be includible in the assessable value and accordingly duty demand on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit availed inputs in respect of which the Cenvat credit involved was ₹ 59,839/-. 1.2 On scrutiny of the records maintained by the unit, it was found that while they were stock transferring the finished goods to depot, from where the same were being sold, they were not including the element of freight in the assessable value and the duty short paid on this count during period from 30-8-2001 to 29-9-2005 was determined as ₹ 2,45,215/-. 1.3 Show cause notice was accordingly issued for demand of duty amounting to ₹ 2,45,215/- in respect of clearance of finished goods to depots deposits which had been short paid on account of non-inclusion of the freight charges in the assessable value, demand of Cenvat credit amounting to ₹ 59,839/- in respect of cenvated inputs found short, confiscation of the excisable goods seized, and also for imposition of penalty on the appellant company as well as on its authorised signatories Shri R.P. Gupta and Shri Amit Kumar. Besides this, the SCN also sought recovery of interest on the duty and Cenvat credit demanded. This show cause notice was adjudicated by the Assistant Commissioner vide order-in-original dated 1-11-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the Commissioner (Appeals). 5. We have considered the submissions made by both the sides and perused the records. The first point of the dispute is regarding confiscation of 34.0791 MT printing and writing paper valued at ₹ 6,47,917/- which was not entered in RG 1 register. The appellants do not dispute the fact of non-accountal of this stock of writing and printing paper which represents more than one day s production. The only explanation given by the appellant is that there was no intention on their part to clear the excess stock without payment of duty. In our view, this explanation is not acceptable, as in terms of the provisions of Rule 25(1)(b) of Central Excise Rules, 2002, penalty under this Rule is attracted for non-accountal of any excisable goods produced or manufactured by an assessee and in this regard mens rea is not required to be established. Therefore, the confiscation of the goods along with the option to the appellant to redeem the same on payment of redemption fine in lieu of confiscation and penalty on appellant company is upheld. 6. Coming to the second point of Cenvat Credit demand of ₹ 59,839/- on the shortage of Cenvated inputs, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3)(c) cover only the factory or warehouse where the goods have been permitted to be deposited without payment of duty and from where such goods are removed. It is only with effect from 14-5-2003 that clause (iii) was added to Section 4(3)(c) of the Central Excise Act, 1944 so as to include depot, premises of the consignment agent or any other place or premises from where excisable goods are to be sold after their clearance from their factory , within the definition of place of removal . But during the period from 1-7-2000 to 13-5-2003, the depot or consignment agent s premises were not included in the definition of place of removal . Therefore, during the period till 13-5-2003, the freight expenses from the factory gate to depot would not be includible in the assessable value of the goods and duty demand on this count would not be sustainable. It is only with effect from 14-5-2003 that the depot had also been included in the definition of place of removal and accordingly w.e.f. 14-5-2003 only, the freight expenses from the factory to depot would be includible in the assessable value and accordingly duty demand on this basis would survive only for the period from 14-5-2003 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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