9911796707
TMI Blog1998 (6) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Applications under Section 35F of Central Excise Act, 1944 in respect of Appeal No. 571/97 for the waiver of pre-deposit of the amount under the impugned order have also been filed by the appellant. 3. Personal hearing in the case was fixed on 12-12-1997 which was attended by S/Shri A.K. Jain, Advocate, S.K. Agarwal, Consultant, and G.K. Bhuwania, (G.M.). It was submitted by the Advocate that demands related to the period earlier than 22-7-1996 i.e. the date from which the concept of the depot sale was introduced in the Budget and became operative from 27-9-1996. It was contended that they were not required to pay duty on the value realised from sale from depot because they had also ex-factory sale and as per the existing law if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Asstt. Commissioner is limited to a demand of Rs. 50,000/- and a penalty of Rs. 250/- which has been exceeded in the instant case. In this connection he cited the following case laws :- (i) 1997 (91) E.L.T. 479 (ii) 1992 (58) E.L.T. 209 (T) = 1991 (33) ECR 687 (T) 4. Facts of the case in brief are that the appellants are engaged in the manufacture of washing powder and soap falling under sub-heading 3401.00 of the CETA, 1985. Appellants filed price declaration in Annexure-II under Rule 173C for acceptance, claiming therein certain deductions from the price which is equal to the price at which the goods are sold from the factory. It was felt that the deductions claimed for depot sales are not admissible. Accordingly SCNs were issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under his impugned order or the assessable value for sales at factory gate shall be applicable to the goods sold through the depot as well as contended by the appellants. I find that the demands pertain to the period prior to 22-7-1996, i.e. the date from which the concept of two different assessable value i.e. at factory gate and depot sale was introduced in Budget of 1996 became operative from 1-9-1996. I find force in the contention of the appellant that since in their case factory gate sale price is available, the same should be applicable for the similar goods sold through their depots. In view of the various case laws cited by the appellant, it is a settled legal position that actual depot price is irrelevant for the purpose of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid case the Tribunal noted in the judgment under appeal that the price ex-factory is ascertainable. If once that is the position as the Tribunal rightly pointed out, the issue of deduction of rate from the prices ex-depots does not survive for the decision". The Hon ble Apex Court has held that where the goods are sold partly from factory gate and partly through depots and the ex-factory price is ascertainable it is to be taken as the assessable value under Section 4 of the Act. The Tribunal has gone a step ahead in the case of Lucas Indian Services v. CCE [1996 (83) E.L.T. 441 (Tribunal)] wherein it has been held :- Para 4 : ....... Manufactured goods are subject to two types of sales, one at the factory gate to the two main dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Easter Ind. Ltd. v. CCE - 1996 (81) E.L.T. 260 (T) against which department went into the Supreme Court. The Supreme Court in this case also dismissed the Civil Appeal No. 218/97 on merits [1997 (96) E.L.T. A71]. Besides the question whether the ratio of sales at factory gate and through depots would have a bearing on the assessable value has also been the matter of decision by the Apex Court in the case of A.K. Roy v. Voltas Ltd. - 1977 (1) E.L.T. (J 177) (S.C.) which has held as under :- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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