Rakesh Kumar, Technical Member - The facts leading to these appeals filed by the Revenue are, in brief, as under:

1.1 The Respondent are engaged in the manufacture of Tractors, Forklift Trucks, Harvester Combines and parts thereof chargeable to Central Excise Duty under Chapter heading 84 & 87 of Central Excise Tariff. During the scrutiny of their Central Excise records for the period from April'01 to March'03, it was observed that they had been selling their finished product to Government Departments at DGS&D rate contract and as per the sale contract, the responsibility for transportation of the goods lies with the respondent to whom the payment is to be released on receipt of the goods at the buyer's premises. It was also found that while their invoices did not mention the freight charges, they were charging additional amount towards freight by debit notes, but the same was not being included in the assessable value. The Department was of the view that since the sales are on FOR destination basis and as per the terms of the sales contract, the risk during the transit of the goods is of the respondent, the sale takes place at the buyer's premises and hence it is the buyer's premises which would be the "place of removal" and accordingly, duty would be chargeable on the assessable value including freight expenses from the factory gate to the buyer's premises. It is on this basis that five show cause notices dt. 23.8.01, 3.4.02, 20.9.02, 13.3.03 and 11.9.03 were issued for recovery of allegedly short paid duty amounting to Rs. 6,841/-, Rs. 3,520/-, Rs. 25,566/-, Rs. 17,455/- and Rs. 14,142/- respectively for the period Sept.'2000 to March'01 from April'01 to Sept.'01, Oct.'01 to March'02, April'02 to Sept.'02 and Oct.'02 to March'03 respectively alongwith interest on duty at the applicable rate, as per the provisions of Section 11AB and also for imposition of penalty on the respondent under Rule 173Q (1) of Central Excise Rules, 1944 and Rule 25 (1) of Central Excise Rules, 2001/2002.

1.1.2 The show cause notices dt. 3.4.02, 20.9.02, 13.3.03 and 11.9.03 were adjudicated by a common order-in-original No. 100-103/AC/CE/03 dt. 6.2.04 by which the proceedings initiated by the above mentioned four show cause notices were dropped. The other show cause notice dt. 23.8.01 was adjudicated by order-in-original No. 104/AC/CE/2003 dt. 17.2.04 by which the proceedings initiated by order dt. 23.8.01 were dropped. The Department filed review appeals to Commissioner (Appeals) against order-in-original No. 100-103/AC/CE/03 dt. 6.2.04 and No. 104/AC/CE/2003 dt. 30.1.04 passed by the Asstt. Commissioner and the Commissioner (Appeals) by common order-in-appeal No. 842-843/CE/CHD/04 dt. 29.12.04 dismissed the Department's appeals. It is against this order of the Commissioner (Appeals) that these two appeals have been filed by the Department.

2. Heard both the sides.

2.1 Shri Amrish Jain, learned DR, assailed the impugned order-in-appeal reiterating the grounds of appeal and emphasised that -

(1) the sales in respect of which these duty demands have been made, were FOR basis and as per the sales contract, not only the respondent were responsible for arranging the transport of the goods to the buyer's premises, they were also responsible for delivering the goods in good condition and the risk during the transit was of the respondent which shows that the sale took place at the buyer's premises only;

(2) while the respondent had sold the goods as per the DGS&D rate contract on FOR basis, invoices do not show the freight charges separately and later on, the Respondent issued debit notes on account of freight, from which it is clear that the amount charged against the debit notes was additional consideration, in addition to the amount shown in the invoices issued at the time of clearance of the goods and hence the same was includible in the assessable value. Shri Amrish Jain also pleaded that extended period under proviso to Section 11A (1) of t