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TMI Blog1995 (10) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Department was aware of the system of transport and sales of the goods from NOIDA and nothing has been concealed. It is an admitted fact that the party had made misdeclaration in part-I price list regarding the sales at the factory gate in respect of certain varieties of films. They had declared in the price lists in a very clear term that the sales are made at the factory gate whereas the sales were not made from the factory gate. Thus, the allegation regarding misdeclaration against the party is proved. In the gate passes the name of the consignee viz. Ester Industries NOIDA was given. If there was clear mention that the goods were consigned to the Depot of the party at NOIDA, the intention should have been made clear in each of the Gate Passes and against the name of the consignee they should have rather indicated as `SELF DEPOT, NOIDA . Had this been done, the misdeclaration made by the party in the price lists would have been caught by the Departmental Officers. Moreover, as stated above once, the RT-12 for want of details of freight, insurance etc. had been kept pending when the show cause notice was issued, there might have been no occasion for the Range Staff to go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n determined on the basis of wholesale ex-depot price after allowing deduction on account of freight, insurance etc. in accordance with law. Accordingly, a show cause notice was issued to the appellants asking them to explain as to why the sales price from the depot at Noida minus the admissible deduction should not be taken as assessable value in respect of such polyester films for which there was no clearance at the factory gate to independent buyers and why the differential duty in respect of those varieties of polyester films in Part-I at factory gate did not exist should not be demanded. It was also alleged that the appellants were charging higher price in their invoices during the year 1991-92. The appellants were therefore, asked to explain as to why the duty should not be levied and collected on the higher price. It was also alleged that the appellants were selling the Off-Grade variety of polyester films from the sales depot at a much higher price than the price at which same goods were cleared at the factory gate. The appellants were therefore, asked to explain as to why the differential duty should not be demanded from them and why penalty should not be imposed on them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the extended period of limitation should not be invoked having regard to the facts and circumstances of the case that there was no misstatement, suppression, fraud or collusion. The learned Counsel argued that the appellants had a normal price at the factory gate approved and therefore, there was no question of having different price for the same product being taken up as the assessable value; that the factory of the appellants was located at a remote place and to save time and distance, the appellants had perforce to carry the same goods to its godown for the convenience of its customers; that once the factory gate sales for polyester films for different varieties are available, there is no question of any other price being approved as an assessable value for such sale; that if certain customers have a few varieties of polyester films preferred to make purchases of small quantity from the depots, the price variation for such sales cannot be the basis of levy of duty of excise; that the Excise Law does not require the assessee to identify each variety of polyester film and force the sale of such films at the factory gate at the price declared by the assessee; that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and relied upon the ratio of the decisions in the case of : 1.Essel Packaging Ltd. reported in 1990 (50) E.L.T. 430. 2.Lubri-chem Industries Ltd. reported in 1994 (73) E.L.T. 257. 3.Chemicals and Plastics India Ltd. reported in 1994 (74) E.L.T. 549. 4.Mitter Sen Industries reported in 1994 (74) E.L.T. 563. 5.Rainbow Industries Ltd. reported in 1994 (74) E.L.T. 3. 6.Prolite Engineering Co. reported in 1995 (75) E.L.T. 257. 7.Cosmic Dye Chemicals reported in 1995 (75) E.L.T. 721. 8.Window Glass Industries Ltd. reported in 1988 (37) E.L.T. 544 9.ITC Ltd. reported in 1992 (62) E.L.T. 604. 10.Upper Doab Sugar Mills repored in 1987 (32) E.L.T. 124. Concluding his arguments, the learned Counsel submitted that both on merits as well as on limitation, the case is squarely covered in favour of the appellants and therefore, prayed that the impugned order may be set aside and consequential relief may be granted to the appellants. 6. Shri A.K. Singhal, the ld. JDR submitted that the appellants were selling the goods to consumers at a higher price than the price at which they were selling the polyester films to wholesale buyers at the factory gate; that this was a stra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the various Courts. Let us first take those issues which have been decided by the Court yet are the subject-matter of the present case. One of the issues is that when there is a normal price at the factory gate for identical goods whether higher price charged for same goods for sale from the depot has any relevance. We find that the Hon ble Supreme Court in the case of Indian Oxygen Ltd. reported in 1988 (36) E.L.T. 723 had held - ``The appellants are selling the goods from the factory at Visakhapatnam and also from their service centre at various places. The goods also sold at DGS D rate contract. Since the ex-factory price is ascertainable, such ex-factory price shall be the basis for determination of value under Section 4 of the Central Excises and Salt Act, 1944 and the question of transportation charges become irrelevant. The Hon ble Supreme Court also held - ``If the ex-factory price is ascertainable, the issue of deduction from the ex-depot prices does not arise. But if the ex-factory prices are not ascertainable and goods are to be assessed at ex-depot, then it is for the manufacturer to claim on the actual evidence of the admissible deductions from the price list. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tmental Represenative; that we shall have to determine the price for such films on the basis of the prices charged from the depot after giving normal deductions. We find that the question of allowing the deduction from the depot price was finally settled by the Hon ble Supreme Court in the case of Madras Rubber Factory reported in 1995 (77) E.L.T. 433. We find that the question of determination of value in respect of such goods, the dispute centres round the determination of transport charges. The Collector in his findings in the order-in-original had held that the appellants did not produce any evidence to show the exact expenditure incurred by the appellants. The contention of the appellants had been that all documents were seized by the Directorate of Revenue Intelligence and therefore, the evidence was already available with the adjudicating authority. The learned Counsel also submitted that the balance sheet which was in possession of the appellants was submitted to the adjudicating authority who did not care to look into it and accepted the transport cost of other firm which was similarly located. It was further argued before us that this decision of the Collector was illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in respect of insurance and freight . This clearly shows that the appellants were holding back some information which made the RT-12 returns incomplete and not finalized. As the appellants are required to intimate their sales organisation and as the appellants had not disclosed their sales organisation nor did they indicate that certain varieties of polyester films they were selling only through their depots, we find that there was suppression. On the question of limitation, a lot of case law was cited. We have perused all the case law cited and relied upon by the appellants. We have analysed all the evidence on record in detail and have come to the conclusion that there was wilful misstatement and suppression of facts. The question whether this has been done with an intent to evade payment of duty has to be seen in the light of the evidence on record. Whether any intention to evade payment of duty can be attributed to the appellants, we find that the appellants were beneficiaries and therefore, on account of payment of lower amount of duty they knew that the position indicated by them in the price lists submitted in Part-I was not correct. The intention to evade payment of d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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