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TMI Blog2017 (3) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... period by payments at regular intervals. They were also held liable to differential duty of Rs. 1,91,674/- for the period from January 1997 to December 2001 under section 11A of Central Excise Act, 1944 being the amount collected as 'clearing rental charges' by M/s Jai Clearing from customers, interest thereon, and imposed penalty of Rs. 1,91,674/- under section 11AC of Central Excise Act, 1944 besides penalty of Rs. 50,000/-. A further penalty of Rs. 25,000/- was imposed on Shri AH Buch, President of the appellant-company. 2. Appellant is a manufacturer of 'cotton yarn', 'non-cellulosic spun yarn' and 'cellulosic spun yarn' and proceedings were initiated as it was noticed that goods cleared to their depot at Bhiwandi were being sold to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. We concur with this contention and set aside the penalty of Rs. 50,000/- on the appellant company and Rs. 25,000/- on the appellant-Director. 4. The disputed levy straddles the ambit of two sets of Valuation Rules and the finding of differential duty on charges collected by a third party being recoverable is challenged by Learned Counsel on behalf of appellant-assessee. It is pointed out that these charges are in the nature of incidental expenses that are not in consonance with the charges that are liable to be included in assessable value for the period prior to the amendment in section 4 of Central Excise Act, 1944. He cites the decision of the Tribunal in Andhra Pradesh Paper Mills Ltd v. Commissioner of Central Excise, Vishakapatna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... segments. The first segment, on which demand of the duty would be from 28-9-1996 to 30-6-2000; the second segment is for the period from 1-7-2000 to 13-5-2003 and the last segment is for the period from 14-5-2003 to 30-6-2004. 7.1 We take up the first segment i.e., period involved between 28-9-1996 to 30-6-2000. During this period, the provisions of Section 4 of Central Excise Act, 1944, mandated ascertaining normal price of the goods cleared from the factory gate. It is undisputed in this case that in order dated 22-10-2009, in respect of the very same assessee, we have categorically held that for the period in question, the place of removal was factory gate and since the conversion of paper reels into reams does not amount to manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority has relied upon the provisions of Central Excise Valuation Rules, we find that provisions of Section 4 of Central Excise Act, 1944, did not have definition of 'place of removal'; due to which it cannot be held that the clearances made by the appellant from various depots can be termed as clearances from 'place of removal' and price prevailing during this period at those depots needs to be considered. In our view, for the period in question i.e. 1-7-2000 to 13-5-2003, we have no hesitation to hold that there cannot be any demand on the appellant, there being absence of definition of 'place of removal' in the Central Excise Act, 1944.' For the period thereafter, the decision in re Bharat Petroleum Corporation Ltd expr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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