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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 ..... 1, CESTAT(Procedures) Rules recalling F.O. dated 03-12-2009 and M.O. dated 19-07-2010 and directing both appeals to be listed on 02-07-2012 for hearing. No notice. 2. The department appeal No. E/901/2008 filed by the department against same Order-in-Original dated 12-09-2008 was also heard together with this appeal and is being taken up for disposal along with assessee's appeal. 3. On behalf of assessee, learned counsel Ms Maithli, summarized the facts of the case as follows: 3.1 The assessee offers the above goods for sale at the factory gate to independent buyers, which include various Public Sector Undertakings. At the request of some of the buyers, the goods are also sold at the Company's Depots as a special service to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner covering the period 01-01-1991 to 31-03-1995, invoking the extended period of limitation and seeking to demand differential duty on the ground 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only 3% of the total sales. Further, she held that the assessee was not entitled to the following abatements: a) Cash discount/sales rebate where not availed by customers; b) Abatement on account of interest on receivables; c) Abatement on freight on sales. 3.5 The assessee once again challenged the order of the Commissioner in the de-novo proceedings by filing an appeal before CESTAT, Bangalore. 3.6 CES TAT, Bangalore finding that the lower authority had discarded the ex-factory price without going into any evidence to show that the ex-factory price was not genuine, disposed of the appeal by Final Order No. 999 dated 23-06-2005, once again remanding the matter for de-novo adjudication with the following directions/observations: "The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 abatable elements like, transportation, inventory charges are excluded. She contended that there were several sale sat factory gate to other buyers in addition to those mentioned in the show cause notice/ discussed in the order. She relies upon the ratio of a number of case laws, inter alia; i) Jetex Carburetors Pvt.Ltd. vs CCE, Vadodara-II (2013(290) ELT 95(Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative of normal price as defined under Section 4(1) (a) of the Central Excise and Salt Act, 1944, in the absence of any documentary evidence adduced by the department in support of allegation that the ex-factory price to the independent buyer is artificial and deliberately kept low in order to prove that the price charged at sale depot are normal prices satisfying the provisions of Section 4(1) (a) of the Central Excise Act, ibid. I have gone through the case laws cited by 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, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is well settled in their favour by the judgment of Apex Court in MRF case holding that such interest is a post removal expense and hence a permissible deduction. With regard to abatement claimed on freight on 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. 9. From the foregoing, we are of the considered opinion that the impugned order to the extent of confirming duty liability on appellant with interest thereon and imposing penalty requires to be set aside, which we hereby do. 10. Department in appeal E/901/2008 has submitted that although adjudicating authority has confirmed the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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