9911796707
TMI Blog1987 (8) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... s follows :- (a) the appellant filed two price-lists on 15-9-1975 in relation to two of their products, namely Fromor Ammonium Phosphate 28-28-0 and NPK 14-35-14 under Section 4(i)(a) of the Act disclosing the identical price of Rs. 2,930/- per M.T., inclusive of Central Excise Duty and agent s commission; (b) the assessable value in respect -of both the fertilisers was determined at Rs. 2,547.83 per M.T. (i.e. Rs. 2,930/- minus Central Excise Duty at 15% ad valorem amounting to Rs. 382.17 only) rejecting the element of agent s commission claimed. [The instant revision application now heard as an appeal does not relate to the inclusion of the agency commission in the assessable value. It does not also relate to the assessable value d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard as an appeal was the sequel." 2. Learned brother Shri Gouri Shankar Murthy in his order dated 13-8-1986 has held that where the ex-factory price is available and some sales do take place uniformly at that price, one cannot resort to the price at a place other than the place of removal for ascertaining the assessable value. He has also gone on to add that in any event, if the price at a place other than the place of removal is to be taken into account for computation of the assessable value, the cost of transportation between the place of removal and the place of sale will, necessarily, have to be excluded from the computation of assessable value . Since it has not been established by the department that the goods at the place of remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 20 that quantum of goods sold by a manufacturer on wholesale basis is entirely irrelevant. There are facts that such sales may be few or scanty does not alter the true position . Learned Advocate has stated that this law laid down by the Hon ble Supreme Court in Voltas case has not undergone any change. In effect it has been confirmed by the Hon ble Supreme Court in its judgment in the case of Bombay Tyre International Ltd. (1983 E.L.T. 1896) wherein it has been observed that the scheme of valuation of excisable goods under old Section 4 and new Section 4 are not materially different. He invites special attention to para 31 of the said report of the latter judgment which reads as follows :- 31. It will be noticed that the basic sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He relies upon the judgment of the Supreme Court in the case of Narayan Row v. Model Mills Nagpur Ltd. (64 ITR 67 S.C.) and judgment of Maharashtra High Court at Bombay in the case of Walchand Nagar Industries Ltd. v. ITO (44 ITR 260) in which the above principle as commented upon by the learned author of the aforesaid book has been enunciated. The learned Advocate for the applicant has stressed that even a subsequent judgment according to the above principle has been held to be applicable in rectifying the mistake apparent from record as laid down in Section 35C of the Central Excises and Salt Act, 1944 (the Act). While in the instant case a mistake has occurred in not applying the existing law laid down by the Supreme Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case are set out to the effect that the petitioner (State of Karnataka) had sold 96% to 97% of the soap manufactured at its factory to the zonal agents in terms of agreements entered into by the petitioner with those agents. The remaining 3 to 4% were sold to other dealers at the factory premises to whom the petitioner allowed a lesser rate of discount. The department had contended that since 3 to 4% of the soap manufactured at the factory was sold to the various dealers at the factory premises, that sale price and the discount allowed thereon should alone be taken into consideration for determining the wholesale cash price for the product. The contention, however, was negatived by the Court in the following words :- 8. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which is far less than 3 to 4% of the sales not relied upon by the Karnataka High Court in the case referred to above. In view of the aforesaid pleas, learned SDR stated that the ROM application deserves to be dismissed. 7. We have carefully considered the pleas advanced on both sides. We observe that the application under Section 35C of the Act must relate to patent and obvious mistake which is apparent from the record. The mistake must not relate to debatable points of law or to facts which are required to be investigated further or which are to be arrived at by tortuous process of reasoning. We can do no better than to quote the observation of the Hon ble Supreme Court in the case of T.S. Balaram v. Volkart Bros. referred to above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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