9911796707
TMI Blog1995 (10) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-10-84 to 31-3-85 4-12-85 1,70,957.14 E/2549/91 25-9-83 to 31-3-84 13-11-84 1,34,634.37 Appeals by C.C.E. E/4466/92 1-1-87 to 27-2-88 4-8-87 81,044.99 E/4467/92 1-3-86 to 31-12-86 - 5,83,432.40 3. The facts in brief leading to the above appeals are that M/s. Kashmir Vanaspati Ltd. are engaged in the manufacture of vegetable product. They sell their vegetable product (Vanaspati) to wholesale buyers in Jammu and Kashmir State as well as outside the State and to the Army. In the case of wholesale buyers in the State of Jammu and Kashmir, the goods are sometimes delivered at the wholesale buyers premises and are also sold through their sale depots in the State of Jammu and Kashmir. For delivery of the goods at the wholesale buyers premises and through their sale depots, the appellants charged an additional amount to cover the cost of transport, outward handling charges and local taxes paid. These amounts were collected through sale invoices from 1-1-1982 to 14-9-1983 and from 15-9-1983, debit notes were issued to the buyers. The appellants were not submitting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d collected on the element of sales tax included in the normal price which was not required to be so collected. The learned counsel therefore, submitted that the amount of duty paid on the sales tax element in assessable value could be set off by the duty if any payable on the sales tax collected by the assessee. 7. The learned counsel also argued that there was no misstatement on the part of the appellants and therefore, the demand was time barred. Referring to the show cause notice, the learned counsel submitted that there was no allegation of suppression or misstatement in the show cause notices and therefore, longer period beyond six months could not be invoked. The learned counsel argued that the demands for short levy were being raised in the RT-12 returns finally assessed during the material period. The Central Excise authorities were fully aware that the distribution charges were being collected. Referring to the RT-12 returns for the month of July, 1982 to April, 1983, the learned counsel submitted that there is a clear indication by the endorsement recorded in these RT-12 returns that the assessee was collecting the distribution charges. The learned counsel also referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six months; that the Jammu and Kashmir High Court in their order dated 27-3-1987 while deciding the Writ Petition No. 5/83, held that sales tax was included in the ex-factory price arrived at which was approved by the Directorate of Vanaspati and accepted by the Department as normal price. The learned DR therefore, submitted that collecting sales tax again as additional charges was nothing but collecting a part of the price. The learned DR therefore, submitted that both on merits as well as on limitation, the assessee has no case and prayed that the impugned orders may be upheld in respect of four appeals filed by the assessee and set aside in respect of the two appeals filed by the Collector. 9. Heard the submissions of both sides. In a short compass, there are two issues for determination before us. The first issue is that when there was normal price for wholesale buyers at the factory gate approved by the Department, can the additional charges collected by the assessee for sales through their sale depots be includible in the assessable value and the second issue is whether in the facts and circumstances of the case, there was suppression or misstatement requiring extension of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale price which gives credit to the wholesale buyer for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the transport of the articles. As already stated it is not necessary for attracting the operation of Section 4(a) that there should be a large number of wholesale sales. The 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. It is pertinent to note that in the above rulings, the Apex Court held that it is not necessary for attracting operation of Section 4(a) that there should be a large number of wholesale sales; that the quantum of goods sold by the manufacturer on wholesale basis is entirely irrelevant; that there are facts that such sales may be few or scanty does not alter the true position. Examining the facts of the present case in the light of the above ruling of the Apex Court, we find in the instant case that Vanaspati was sold to buyers of States other than J. K. as well as to the Army at a price which was admittedly the normal price and in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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