9911796707
TMI Blog1995 (10) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... that Writ Petition filed by the assessee regarding certain aspects of the case was dismissed by the High Court and appeal is pending before the Supreme Court. There is no dispute till the period 10-11-1976 when assessee was paying duty at tariff value. The dispute has arisen only for the subsequent period since tariff value was removed and value is to be determined ad valorem. The assessee filed price list on 17-11-1976 of Sulphuric Acid manufactured and consumed. The price list showed the price on the basis of cost of production plus profit. The price list was approved on 18-11-1976. The Collector issued notice to the appellants to show cause why the valuation on the basis of the value of comparable goods produced by another manufacturer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be prescribed. Place of removal as defined in Section 4(4)(d) is a factory or other premises of the manufacturer or warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty i.e. bonded warehouse, from where such goods are removed. 4. In exercise of the power conferred by Section 37 of the Act, the Central Government have made the Central Excise (Valuation) Rules, 1975 (for short, `the Rules ). Rules 4 and 5 prescribe the method of computing the value of excisable goods where goods are actually sold. Rule 6 is the residuary rule governing cases where value cannot be determined under Rule 4 or 5. Rule 6 has three clauses. Clauses (a) and (c) cover cases where goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference in the quality or characteristics of the acid produced by the assessee and that produced by the Kota manufacturer. There appears to be two other differences between the two. The first is that the assessee has been manufacturing 155 M.T. Acid per day, while the Kota manufacturer has been manufacturing 50 M.T. per day during the relevant years. The second is that while the entire goods produced by the assessee were used by way of captive consumption, the Kota manufacturer though captively consuming bulk of the manufactured goods was selling a part. According to the assessee these two differences should have persuaded the Collector to hold that the goods are not comparable. We are not able to agree with his submission. Goods are compar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a real bearing on the normal price, the assessee should have produced before him materials relating to the Kota manufacturer or any other comparable manufacturer to show that bulk manufacturers charge lesser price than comparatively smaller manufacturers or that manufacturers who consume only part of the product normally charge higher price. In the absence of such materials the Collector cannot be blamed for not giving adjustment on this account. Learned Counsel for the appellants submitted that opportunity may be given to the assessee to place records before the Collector. In the circumstances we are inclined to grant such an opportunity. 7. Last contention relates to transportation charges under Section 4(2) of the Act which is repro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the price for delivery at a place other than the place of removal. In a case of captive consumption where the entire production is captively consumed, there is no question of sale or of delivery. Therefore the two conditions contemplated in sub-section (2) are not satisfied in a case like the instant one where the entire production is captively consumed. Sub-section (2) contemplates place of removal and place of delivery being different. This will attract only cases where the manufactured goods are sold and not cases where the production is captively consumed. Therefore sub-section 2 of Section 4 is not attracted in the present case. 8. In the circumstances, the impugned order is set aside with direction to consider the question of granti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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