2005 (9) TMI 351 - AT - Central Excise

Summary

Issues:
Assessable value determination under Central Excise Valuation Rules - Application of Rule 6(b)(ii) versus Rule 6(b)(i).

Detailed Analysis:

The case involved a dispute regarding the assessable value of Oxygen and Acetylene manufactured by the appellant during the period from September '94 to February '95. The appellant charged different prices for liquid oxygen cleared to independent industrial consumers and goods stock-transferred to their Bangalore unit. A show-cause notice was issued demanding duty on the differential value, which was contested by the assessee. The Assistant Commissioner adopted the price charged to another company for bulk consignments as the assessable value, leading to a demand for differential duty. The Commissioner (Appeals) allowed the appellant's appeal, emphasizing the application of Rule 6(b)(ii) of the Central Excise Valuation Rules over Rule 6(b)(i) used by the Assistant Commissioner, which was challenged by the Revenue.

The appellant was represented by the learned Senior Departmental Representative (SDR) during the proceedings, while there was no representation from the respondents. The SDR argued that the sale of goods to M/s. KCP Ltd., an industrial consumer, constituted a wholesale transaction, and the price should be considered the normal price under Section 4(1)(a) of the Central Excise Act, citing the Supreme Court's judgment in Ashok Leyland v. CCE Madras, 2002. The Tribunal found merit in the SDR's submissions, disagreeing with the lower appellate authority's conclusion that there was no sale to wholesale buyers at the appellant's factory. Referring to the Tribunal's precedent in Hindustan Lever Ltd. v. CCE, Tiruchirappalli, the Tribunal emphasized that the size of the consignment determines whether a sale is on a retail or wholesale basis. The Tribunal concluded that the sale to M/s. KCP Ltd. was on a wholesale basis, setting aside the impugned order and allowing the appeal.

In conclusion, the Tribunal overturned the decision of the lower appellate authority and allowed the appeal, emphasizing that the sale of goods to M/s. KCP Ltd. was on a wholesale basis, warranting the application of the normal price under Section 4(1)(a) for the assessment of excise duty.