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TMI Blog2016 (11) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... sales, it is seen related to expenses incurred by appellant on account of freight charges from depot to the buyer's premises which are clearly post removal expenses and thereby a permissible deduction. The acceptability and genuineness of ex factory price is incorrect In the light of the discussions herein above, when it has been clearly held that the ex-factory prices are genuine prices and they can be the basis for the assessment of goods cleared from the depot, the department appeal will have no legs to stand on and cannot therefore survive - appeal of Department dismissed - decided in favor of assessee. - Appeal No. E/926/2008 & 3901/2008 - FINAL ORDER No. A/30833 to 30834/2016 - Dated:- 14-7-2016 - Ms. Sulekha Beevi, C.S., Member (J) And Mr. Madhu Mohan Damodhar, Member (T) Ms. L. Maithli , Advocate for the Appellant Shri Nagaraj Naik, AR for the Respondent [Order per: Madhu Mohan Damodhara] 1. The present hearing of these appeals has been necessitated consequent to recall of Tribunal Final Order No. 1490/2009, dated 03-12-2009, vide the docket order of CESTAT, Bangalore dated 12-06-2012 which reads as under: M.A. Allowed. Order passed U/r 41, CES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that for the entire period only the depot price and not the factory price will form the basis for determination of assessable value and deductions claimed from the depot price cannot be allowed. 3.3 Commissioner of Central Excise, Hyderabad vide Order-in-Original dated 29-12-1997, held that the factory gate sales were created ones and did not represent the normal price and therefore valuation was required to be done on the basis of ex-depot price. As regards the abatements claimed, out of the ten deductions claimed three were disallowed, namely, interest on inventories, interest on receivables and freight on sales. A duty demand of ₹ 1,161,81,601/ was confirmed on the basis of the depot price as reduced by the seven abatements allowed and a penalty of ₹ 13 lakhs was imposed. The assessee challenged this order by filing an appeal before CEGAT (as it was then). The department, however, did not appeal against any part of the order. This appeal was disposed of by CEGAT Final Order No. 1478/2000 dated 24-10-2000, remanding the matter back to the original authority with the following observations/directions: In view of our findings, we would remand the matter to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. All issues are kept open. The original authority shall give the Appellants a fair hearing and decide the issue in accordance with law within four months from the date of this order . 3.7 In second de-novo adjudication, Commissioner of Customs and Central Excise, Hyderabad Il, passed Order-in-Original dated 12-09-2008, agreeing that there is no denial of the fact that there existed factory gate sales ot independent buyers and price thereof is ascertainable, hence inclined to uphold that ex-factory price would from the basis of assessment of goods cleared form the depots. He however, held that the assessee is not eligible for the following abatements: a) Interest on Inventories at Depot; b) Interest on receivables; c) Freight on sales; 3.8 Aggrieved by this order, to the extent that the Commissioner has confirmed the duty demand arising out of value determined on the basis of the depot price despite holding that there was a genuine ex-factory price and imposed penalty, the assessee has filed this appeal. 4. The Ld counsel further submitted that assessee had filed price list in Part VI showing that factory price would be same as depot price if all aba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assesses, wherein it has been laid down that where goods are partly sold from the depots and partly from factory the ex-party price should become basis for the value under Section 4 of Central Excises and Salt Act, 1944, even for the goods sold from the depots, provided the ex-factory price is ascertainable and the relative quantum of goods sold ex-factory immaterial. Therefore respectfully following the ratio of the decisions of the Honourable Supreme Court and Tribunals, I am inclined to accept the contention of the assesses and uphold that the ex-factory price would form the basis for the assessment of the goods cleared from the depots . 7. As observed in Tribunal's earlier order, when the adjudicating authority has come to clear finding that the factory gate sale prices or ex-factory price are the genuine price and they can be the basis for the assessment of the goods cleared from the depot, the confirmation of demand by the authority is contradictory to the conclusion reached by him and will not therefore sustain. The case laws relied upon by the assessee on settled law as laid down by Hon'ble Supreme Court, in 1988 (36) ELT 723 (S.C.)-Indian Oxygen case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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