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TMI Blog2010 (3) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... research institute, though required to file price list in respect of goods sold to research institute, though required to file price list regarding captively cconsumed goods. Therefore, from 1.4.1994 appellant entitled to pay duty on assessable value based on cost construction method. - E/120/2002 - . A/172/2010-WZB/C-II/(EB) - Dated:- 10-3-2010 - S/Shri P.G. Chacko, Member (J) and P. Karthikeyan, Member (T) Shri Prakash Shah, Advocate, for the Appellant. Shri S.M. Vaidya, JDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. - In this appeal filed by the assessee, the dispute relates to valuation of the goods in question, which was captively consumed by the appellant. The period is from February, 1993 to Septemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of incorporating additional grounds for the appeal. After hearing both sides, we note that one of the additional grounds proposed to be incorporated in the appeal is regarding the nature of the sale of goods to the Research Institute. It is contented that such sales are liable to be treated as retail sales and not as wholesale for purposes of Section 4 of the Central Excise Act. The quantities of the goods and the rate at which they were sold to the research institute have been stated by the appellant. On the basis of these data as well as the provisions of Section 4 of the Act, learned counsel has argued that the price charged to the Research Institute cannot be considered as comparable price to invoke Rule 6(b)(i) of the V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade. According to learned JDR, such sales would qualify to be sales in the course of wholesale trade inasmuch as bulk quantities were sold to the Research Institute and there was no further sale by the buyer in retail. Referring to case law, it has been argued that, for the purpose of Rule 6(b)(i) of the Valuation Rules, more than one instance of wholesale sale of identical goods is not necessary and that the quantum of such sale is also irrelevant. We have considered the submissions. The assessee had sold aluminium hydroxide gel to the research institute on seven occasions during the period from October, 1992 to August, 1993. These clearances were in the following quantities and at the following rates : 1. 750 kgs Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant to the present case and the same is reproduced below : "4. The next ground is that the price of Rs. 125/- per kilograms was charged to one class of buyers, namely Government laboratories, and those goods, which were consumed by their manufacturer were sent to industrial buyers. This ground is misplaced. The question of different prices for different classes of buyers arise only if the value is determined under Section 4(1)(a); where goods are captively consumed, there being no sale, the value is fixed not under Section 4(1)(a) but under Section 4(1)(b) by applying the Valuation Rules. Sub-rule (b) of Rule 6 provides that the value shall be based on the value of comparable goods sold by the manufacturer of the goods being valued, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and that the practice of filing price-list itself was done away with from 1-4-1994 with the amendment of Rule 173C of the Central Excise Rules, 1944. In this scenario, we think, we will be justified in holding that the approved price (Rs. 125/- per kg.) of the goods sold to the Research Institute as upheld by this Tribunal, would continue to govern the valuation of identical goods captively consumed by the appellant up to 31-3-1994. From 1-4-1994, undisputedly, there was no requirement for the appellant to file price-list in respect of the goods sold to the Research Institute, though, of course, they were required to file price-list in respect of the captively consumed goods. For the period from 1-4-1994, therefore, the appellant was ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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