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TMI Blog2024 (11) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... been raised before Commissioner (Appeals). In view of above, it is found that facts are not identical to the earlier proceedings, in so far as in the instant case, the appellant agitated issues regarding evidence in the shape of invoices before Commissioner (Appeals) which was not done in the earlier proceedings. The only dispute before Commissioner (Appeals) in the instant case was that while applicability of Rule 7 had not been challenged the manner of calculation was challenged. There are no infirmity in the order of Commissioner (Appeals) remanding the matter back to the original adjudicating authority for fresh adjudication - The appeal filed by Revenue is therefore, dismissed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 06.02.2014, 19.08.2014, 21.01.2015, 27.01.2016 were adjudicated vide order-in-original dated 06.02.2017 and the demands were upheld by Commissioner (Appeals). The present proceedings relates to the show cause notice dated 09.01.2017 adjudicated vide order-in-original dated 29.12.2017. The Commissioner (Appeals) in his order has remanded the issue back to the original adjudicating authority stating following grounds : The department had worked out the differential on the basis of difference between (a) value of goods cleared from factory gate (stock transfer) and (b) value between total goods cleared from depot irrespective of difference in date between (a) and (b). The Commr. (A) held that the Rule 7 does not say to charge the duty bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with Rule 7 2(b) 2(c) of Central Excise Valuation (Determination of Price of Excisabe Goods) Rules, 2000 and Board's Instruction on valuation issued vide F.NO. 354/81/2000-TRU dated 30.06.2000. Further at para 8 the Commissioner (A) held as under: 8. In view of the discussion and findings, I do not find any infirmity with the impugned order of the adjudicating authority. Hence, the same is upheld being legal and proper and thus, I reject the appeal filed by the appellant. 5. Reliance has also been placed on the Tribunal order dated 19.02.2018 rejecting the appeal filed by the assessee. Specific challenge has been made to the following observations of Commissioner (Appeals): 10. In view of the above I hold that method of calculation ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the Tribunal have already confirmed the earlier decision passed by the Commissioner (Appeals). 7. Appeals has also been filed by M/s Bloom Dekor Limited. In appeal filed by Bloom Dekor, it is noticed that the remand has been challenged on the ground that the case made out in the show cause notice was that the price charged from the depot/consignment agent's premises was higher than the price at which excise duty was paid at the factory gate while clearing/transferring the goods to the depot/consignment agent's premises; and this allegation about higher price having been charged at the time of actual sale from a place other than the factory was made on the basis of difference in price derived on the above basis. It has furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee, for delivery at the time and place of the removal, the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale, be the transaction value; (b) in any other cose, including the case where the goods are not sold, be the value determined in such manner as may be prescribed The phrase 'place of removal' is defined under Section 4(3) of the Central Excise Act, 1944. It states that (c) place of removal means- (i) a factory or any other place or premises of production or manufacture of the excisable goods (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without [payment of duty.) (iii) a depot, premises of a consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal adjudicating authority and Commissioner (Appeals), it is apparent that they have admitted the goods were sold through consignment agent. The definition of place of removal clause (iii) specifically covers premises of consignment agent as the place of removal. Rule 7 of the Central Excise Valuation (Determination of price of excisable goods) Rules, 2000 lays down the manner in which assessment needs to be done in these circumstances. Since the sole defence of the appellant that the goods were not sold at the factory gate is unsubstantiated and was never raised before the original adjudicating authority or before the first appellate authority, the same cannot be allowed to be raised at this stage especially when it is seen from the repli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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