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TMI Blog2005 (8) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of provision of Rule 7 of the Central Excise Valuation (Determination of Prices of Excisable Goods) Rules, 2000 and since that in cases where the coated or uncoated pipes at FOR price were inclusive of all taxes, duty, freight, insurance and other expenses incurred at the point of delivery at such sites, for the purpose of duty therefore, assessable values be determined by reducing only the element of taxes from such all inclusive price, and in case, where the goods has been delivered at the factory gate but on customers request, transport arrangement and transit insurance from the factory to the customer work site has been arranged by the assessee, since the transfer of ownership in goods and hence sales will be deemed to have been taken place in such cases at the customer site therefore transportation and transit insurance costs up to the customer's work site would be inclusive in the assessable value. The assessee has discharged duty on the values which did not include the elements of freight, insurance and other expenses. Three less charge demands were made, along with proposal of interest and penalty for the periods - DATE PERIOD AMOUNT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged by the assessee the price to the customer was a composite cost in name of the orders implicit or explicit provision could be located that during the transit of the pipes from the factory gate to the customers work sites, the assessee would retain the ownership or that it was at assessee risk or that assessment would be subject to receipt/delivery and since the goods were inspected by the customer it could not be held that sales took place only at the customers premises. Therefore the entire demand was not upheld. (d) Accordingly for the notice dated 25-7-2002 an amount of Rs. 10,05, 357/- for notice dated 4-3-2003 an amount of Rs. 6,81,282 penalty of Rs. 5 Lakhs Rs. 3 Lakhs was imposed under Rule 25 with interest under Section 11AB. Hence this appeal E/1891/2004 1.5 (a) Appeal No. 1905/2004 is against the order of Commissioner No. 1/B C-II/MD/2002, dated 17-2-2004 disposing of SCN dated 17-1-2002 with corrigendum dated 6-8-2002, wherein duties for the period 25-1-97 to 30-6-2001 were demanded under the proviso to Section 11A along with interest penalties proposed under Section 11AC read with confiscation liability under Rule 173Q(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would come to the rescue of the assessee, to call delivery at buyers premises, to be contrary to Section 2(12) of Sale of Goods Act, 1939. Transit insurance transport costs cannot therefore be added on the grounds as arrived at by the ld. Adjudicator. The retention of any such possession, by the seller, even implied or explicit, after handing over the goods to a transporter, pending recovery of full price, will not cause to conclude that property has not changed hands. This settled position in law of Sale of Goods Act, 1939, has been ignored by the ld. Adjudicator. We cannot uphold 'a' finding, arrived after ignoring the law on Sale of Goods. The interpretation being placed on Section 2(b) of the Central Excise Act, 1944 in this case by Revenue cannot be upheld when it is not as per Sale of Goods Act, 1939. Demands arrived cannot therefore be upheld. (b) Freight charges, shown separately recovered in addition to sale price of the goods cannot be added to determine Assemble Valuation in the facts of this case. The place of Removal is the factory gate not the site of the customer. (c) The tenders floated by M/s. GWSSB (Gujarat State Government Undertaking), Indian Oil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has in Para 6.8.1 of Order Nos. 6 to 8/BRC-II/DIMAN/2004, dated 17-2-2004 in case of SCN dated 25/7 found- "... no clause either explicit or implicit implying that transit of the goods of the Customers work site would be at the assessees of site or that payment to the assessee would be subject to the receipt of material in good condition.. " and therefore concluded that the assessees did not retain the ownership. In Para 6.8.1 he finds part of sale to be place of delivery since the payments were to be effected only after receipt in good condition. In Paras 6.9.1 6.9.2 in case of SCN 4-3-2003 he concludes in same fashion. However, these findings are silent, on whether the pipes were coated or uncoated. In the case of SCN 23-10-2003 there is specific finding that only MS Pipes were supplied. (b) SCN dated 25-7-2002 covers coated as well as coated pipes; it covers the period 1-7-2001 to 31-3-2001 and it is not brought out as to where such coating was done. If the coating was done at job workers premises, costs incurred on coating for valuation of such coated pipes cannot be included. Similarly the notice dated 4-3-2003 for the period 1-4-2002 to 30-9-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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