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TMI Blog1995 (1) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Tariff Act. As per the marketing pattern, adopted by the appellants, they sell their goods to dealers at the factory gate and also sell through their sales depots at Bombay, Ahmedabad and Madras by making stock transfers from the factory. Prior to 1-4-1983, the appellants used to file price lists indicating different prices in respect of the same product sold through various depots, and at the factory gate. On realising that where there is a factory gate sale of the product, the price at the factory would be the assessable value in respect of clearances of such products from the factory in terms of Section 4(1)(a) of Central Excises and Salt Act, 1944, the appellants filed a single price list in Part-I with effect from 1-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 28-12-1987 from the Range Superintendent proposing to collect a duty of Rs. 1,60,614/- being the duty on the excess amount of Rs. 5,85,380/- collected in respect of sales through the sales depots during the period from 1-7-1987 to 30-9-1987. Similar show cause notice dated 4-4-1983 was also issued to the appellants by the Range Superintendent proposing to recover differential duty of Rs. 9,93,188/- on the excess amount of Rs. 88,10,626/- collected during the period 1-10-1987 to 29-2-1988. The appellants received further show cause notice No. 1219/88, dated 25-8-1988 from the Superintendent of Central Excise, requiring them to show cause why differential duty of Rs. 8,99,498.83 should not be [recovered] on the excess realisation of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In such a situation, the Collector (Appeals) found that the ratio of the Supreme Court judgment in the case of Indian Oxygen Ltd. v. Collector of Central Excise, reported in 1988 (36) E.L.T. 723 (S.C.) would apply to the case wherein the Supreme Court had held that if the ex-factory price is ascertainable that should be taken as the assessable value even for the sales ex-depot. He, therefore, set aside the Assistant Collector orders leading to the present appeals. 3. Shri Satish Shah, the learned Departmental Representative appearing for the Appellant Collector drew our attention to the grounds of appeal. In the Supreme Court decision in the case of Union of India v. Bombay Tyre International, reported in 1983 (14) E.L.T. 1896 (S.C.) whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assistant Collector. There was also no need to remand the matter to the Assistant Collector by the Collector (Appeals). The learned Counsel further cited and relied upon the Tribunal decision in the case of Merinoply Chemicals Ltd. v. Collector of Central Excise reported in 1992 (60) E.L.T. 256 (Tribunal) in which on a similar matter relating to assessable value of plywood under similar circumstances the Tribunal had held that ex-factory price should be the assessable value following the Supreme Court decision in the case of Indian Oxygen Ltd. supra. This decision of the Tribunal has been followed in the subsequent decision reported in 1993 (66) E.L.T. 286 (Tribunal), in the case of Sudershan Aluminium Industries v. Collector of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ex-factory Part I price provided it is satisfied that the said price is not genuine. Applying the ratio of this decision which is applicable to the facts of the present case, we find that it has not been established by evidence that the ex-factory price is not genuine. The show cause notices issued to the respondents have not set out the grounds on which the Department found the ex-factory price to be depressed. There is no such charge. It is only in the Assistant Collector s order this observation is made. The evidence on which it is based is not forthcoming. It is not the case of Department that the ex-factory sales are not at arm s length or are influenced by other than commercial considerations. The Collector (Appeals) in the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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