ORDER : Mohammad Yaqoob Mir, J. 1. Instant appeal under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as the "Act") is directed against the final order No. FO./76107/2018 dated 12.03.2018 and also against the order No. MO/75706/2018 dated 09.07.2018 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata (hereinafter referred to as "CESTAT"). 2. Vide order impugned dated 12.03.2018, the appeal of the appellant has been dismissed on merits by CESTAT but in absence of the appellant. Thereafter, the appellant has filed an application for restoration which has been dismissed vide order dated 09.07.2018 on the ground that the appeal has been dismissed on merits. 3. The appellant is engaged into manufacture and sale of goods, is registered dealer under the Meghalaya Value Added Tax as well as under the Central Excise Act, was availing exemption/refund of the excise duty under the notification No. 32/99-CE dated 08.07.1999. During the course of audit by the Central Excise Officers, it was noticed that during the period from 16.07.2003 to 31.03.2005, the appellant had included the cost of transportation and insurance charges for the purpose of valuation in contravention to the provision of Section 4 of the Act read with Rule 5 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000, which resulted in excess refund amounting to Rs. 14,91,094/-. The Adjudicating Authority dropped the demand of Rs. 7,81,794/- but confirmed the demand for balance of duty of Rs. 7,09,300/- and ordered for recovery of the same along with interest. 4. Aggrieved by the order of the Adjudicating Authority, the appellant filed an appeal before the Commissioner (Appeals) which has been rejected. As against the order of the Commissioner (Appeals), the appellant filed an appeal before CESTAT which too has been dismissed. 5. The order impugned passed by the CESTAT dated 12.03.2018 admittedly has been passed in absence of the appellant. On the said basis, the appellant had filed an application registered as MA (ROA)-76166/2018 for restoration of the appeal on the ground that he had received notice for hearing by CESTAT on 10.03.2018 at Shillong whereas, the appeal has been heard and dismissed on 12.03.2018. In short, he would submit that he has not been given reasonable time for appearance at Kolkata as a result whereof he has been deprived of hearing. In short, he would submit that he has not been given reasonable time for appearance at Kolkata as a result whereof he has been deprived of hearing. The contention which he had raised in the appeal, as such, has remained to be determined because the application has been dismissed on the ground that the appeal has been dismissed on merits. 6. While admitting the instant appeal, following two substantial questions of law were formulated:- "1. Whether under the Central Excise Act, 1944 and rules framed there-under, transportation and insurance charges stand included in the assessable value of goods? 2. Whether there is scope for taking into account the intention of the parties in the context of Section 4(3)(d) i.e. "transaction value"?" 7. In terms of Section 4 of the Act "place of removal" is the determinative factor for the purpose of valuation. It is projected by the appellant that the appellant used to sell Ferro Silicon (goods) to various customers and one of the terms of the sale was that the charges of freight (outward handling like transportation and insurance) stood included in the sale price, whereas in some cases, sale was subject to inspection to be done by the customers at their end. In some cases, payment was to be made by the customers after receipt of material(s) and testing/final approval with a condition that if the materials were not found as per the ordered specification, the materials will be rejected and lifted back by the appellant at his own cost. In all cases, the payment was made by the customers after conducting proper inspection and testing approval at their factory premises. Therefore, the appellant used to charge excise duty on normal price of the goods which included the cost of transportation of the said goods from the factory gate to the premises of the customers and used to pay the duty on the value addition to the Government exchequer. As area-based exemption was available to the appellant in his State, he used to apply to the concerned excise authority by filing a statement of duty paid by him along with a copy of the purchase orders and concerned invoices (which specified that cost of freight is included in the price) and other necessary papers related thereto. As area-based exemption was available to the appellant in his State, he used to apply to the concerned excise authority by filing a statement of duty paid by him along with a copy of the purchase orders and concerned invoices (which specified that cost of freight is included in the price) and other necessary papers related thereto. The refund authority after scrutinizing the appellant's claim and documents enclosed thereto, used to issue refund to the appellant in accordance with law. 8. The contention of the revenue that the cost of transportation and insurance are not to be included in assessable value because goods are sold at the factory gate which is the 'place of removal' within the meaning of Section 4 of the Act. 9. In the judgment rendered by the Hon'ble Apex Court in the case of "Commissioner of Central Excise, Noida v. Accurate Meters Ltd." reported in 2009 (235) E.L.T. 581 (S.C.), it has been emphasized that place of removal depends on the facts of each case. The principle laid down in the said judgment has been followed in the subsequent judgment. In this behalf learned counsel for the appellant has placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of "Commr. of Cus. & C.EX., Aurangabad v. Roofit Industries Ltd." reported in 2015 (319) E.L.T. 221 (S.C.). Paras 11 and 12 of the reported judgment are advantageous to be quoted:- "11. In Commissioner of Central Excise, Noida v. Accurate Meters Ltd.- (2009) 6 SCC 52 : 2009 (235) E.L.T. 581 (S.C.), the Court took note of few decisions including in the case of Escorts JCB Ltd. and reiterated the aforesaid principles by emphasizing that the place of removal depends on the facts of each case. 12. The principle of law, thus, is crystal clear. It is to be seen as to whether as to at what point of time sale is effected namely whether it is on factory gate or at a later point of time, i.e., when the delivery of the goods is effected to the buyer at his premises. This aspect is to be seen in the light of provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer. This aspect is to be seen in the light of provisions of the Sale of Goods Act by applying the same to the facts of each case to determine as to when the ownership in the goods is transferred from the seller to the buyer. The charges which are to be added have put up to the stage of the transfer of that ownership inasmuch as once the ownership in goods stands transferred to the buyer, any expenditure incurred thereafter has to be on buyer's account and cannot be a component which would be included while ascertaining the valuation of the goods manufactured by the buyer. This is the plain meaning which has to be assigned to Section 4 read with Valuation Rules." 10. Next learned counsel also placed reliance on the judgment rendered by the Hon'ble Apex Court in the case of "Commissioner of C.EX., Mumbai-III v. EMCO Ltd. reported in 2015 (322) E.L.T. 394 (S.C.). Para 11 of the reported judgment is advantageous to be quoted:- "11. "Place of removal" is the place or premises from where the excisable goods are to be sold after their clearance from the factory and from where such goods are removed. Thus, 'place of removal', in a given case becomes a crucial determinative factor for the purpose of valuation. In the present context, if it is found that transportation charges and transit insurance charges were incurred after the 'place of removal', then they are not to be included. On the other hand, if these charges are incurred before the 'place of removal' then they are to be included while arriving at the transaction value. Again, in the context of the present case, what is to be determined is as to whether the 'place of removal' was the factory gate of the respondent or it was the premises of the purchaser at the time of delivery of these goods". 11. In view of the factual ground projected by the appellant to the effect that the 'place of removal' within the meaning of Section 4 of the Act is at the place of buyer on the delivery of goods. This aspect though was projected before the Commissioner (Appeals) but has been mis-appreciated. Same position amongst other grounds was under challenge before the CESTAT. This aspect though was projected before the Commissioner (Appeals) but has been mis-appreciated. Same position amongst other grounds was under challenge before the CESTAT. In case the CESTAT would have given reasonable opportunity to the appellant of being heard, he would have agitated the same i.e. as to how the Commissioner (Appeals) and the Adjudicating Authority has wrongly determined the 'place of removal' within the meaning of Section 4 of the Act. 12. The centre of controversy is as to whether transportation and insurance charges are to be excluded or included in the assessable value of goods same depends on the factual position linked with place of removal of goods. The place of removal of goods depends upon the facts of each case and conditions of sale. Once it is contended by the appellant that sale was subject to inspection to be done by the customers at their end and payment was to be made by the customers after receipt of material(s) and testing/final approval with a condition that if the materials were not found as per the ordered specification, same will be rejected and lifted back by the appellant at his own cost. Therefore, in such a situation, place of removal is at the place of buyer on the delivery of goods subject to the satisfaction of specification and testing. 13. There is no quarrel on the legal position to the effect that when the appellant remains absent, the appeal has to be decided on merits not to be dismissed otherwise. But the question is as to whether the appellant had been given reasonable opportunity, he has categorically stated that he received the notice issued by CESTAT, Kolkata at Shillong on 10.03.2018 whereas, the case was heard by the Tribunal (CESTAT) at Kolkata on 12.03.2018, that is why he had moved an application on the same ground for restoration of the appeal. While rejecting his application, the stand of the appellant that he had received the notice on 10.03.2018 has not been refuted. 14. Keeping in view the reasons for non-appearance before the CESTAT on 12.03.2018 coupled with the stand of the appellant that the Commissioner (Appeals) which was the last court of appeal for re-appreciating the factual aspect has not appreciated the factual aspect in its right perspective same was pertinently to be looked into by the CESTAT. 14. Keeping in view the reasons for non-appearance before the CESTAT on 12.03.2018 coupled with the stand of the appellant that the Commissioner (Appeals) which was the last court of appeal for re-appreciating the factual aspect has not appreciated the factual aspect in its right perspective same was pertinently to be looked into by the CESTAT. In case the appellant would have been heard by the CESTAT, the factual position to determine the place of removal within the meaning of Section 4 of the Act would have been decided properly. 15. According to the learned counsel for the respondent, it was for the appellant to take all precautions for his appearance before CESTAT on the date of hearing. If he has failed to do so, he cannot claim any benefit on that ground. We are not persuaded to accept such a submission because normally when a person from Shillong has to appear before the Tribunal (CESTAT) at Kolkata, he has to be given reasonable time to reach there and to contest the case. When notice is received on 10.03.2018 at Shillong, it could be very difficult for the appellant to manage appearance on 12.03.2018 and to make arrangement for proper hearing. 16. In view of the principle evolved by the Hon'ble Apex Court that the "place of removal" within the meaning of Section 4 of the Act depends on the facts of each case, in the background of the fact of this case as referred to hereinabove, we are persuaded to hold that the appellant has not been heard in support of his appeal by CESTAT and in the process, vital issue regarding appreciation of factual position as was projected by the appellant before the Commissioner (Appeals), has effectively remained to be looked into by the learned Tribunal (CESTAT). 17. For stated reasons, this appeal is allowed. The impugned orders bearing No. FO./76107/2018 dated 12.03.2018 and No. MO/75706/2018 dated 09.07.2018 are set aside. The matter is remitted back to the learned Tribunal (CESTAT) for deciding the appeal a fresh. 18. The appeal succeeds shall stand disposed of as above. 19. Copy of this judgment be sent to the learned Tribunal (CESTAT) for information.