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TMI Blog2009 (7) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... ds transferred to depot should be assessed at price lower that the said price appears to be against the scheme of valuation provided under Section 4 and the rules made thereunder. – No evidence produced about the lower prevailing price at the depot of the assessee at the time of transfer to the depot. – There is not finding in impugned order that the prices prevailing at the depots were lower than those at the factory gate on the relevant date i.e. date of removal. – Impugned order granting refund is set aside - Appeals by the Department are allowed - E/5890-5892/2004 - 469-471/2009-EX(PB), - Dated:- 3-7-2009 - Justice R.M.S. Khandeparkar, President and Shri M. Veeraiyan, Member (T) Shri V. Chaudhary, DR, for the Appellant. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correctly and allowed the refunds to the respondents. He submits that the respondents never produced any evidence that on the date of the removal on transfer to the depots, their prevailing prices at the depot were lower than the price at which the goods were sold at the factory gate. He also submits that the respondents have not challenged the order of assessment and therefore the refund claims are not admissible in the light of decision of the Hon'ble Supreme Court in the case of Priya Blue Industries Limited v. CC (Preventive) reported in 2004 (172) E.L.T. 145 (S.C.). 4.2 Learned DR also relied on the decisions in the case of Traco Cable Co. Ltd. v. CCE, Cochin reported in 2004 (172) E.L.T. 33 (Tri. - Bang.) and also decision of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e greatest aggregate quantity of goods from the depots etc. are sold at or about the time of removal of the goods being from the factory/warehouse. If, however, the identical goods are not sold by the assessee from depot/consignment agent's place on the date of removal from the factory/warehouse, the nearest date on which such goods were sold or would be sold shall be taken into account. In either case if there are series of sales at or about the same time, the normal transaction value for sale to independent buyers will have to be determined and taken as basis for valuation of goods at the time of removal from factory/warehouse. It follows from the Valuation Rules that in such categories of cases also if the price charges is with reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n provided under Section 4 and the rules made thereunder. The value is determined based on price at the time and place of removal. In the present case, admittedly there are sales at the factory gate at the time of removal. When the prices are not available at the "time of removal", then sale prices at the nearest point of time from the "time of removal" is required to be adopted. Similarly, when the prices are not available at the place of removal, the sale prices at the depots are required to be taken into account. When there are no sales at factory gate and when the entire goods are transferred only to depot and the sale are effected only from the depot, the rules provide for taking the sale value from the depot as the basis for assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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