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TMI Blog1997 (10) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 120/75 as an item falling under Tariff Heading 68 till 27-2-1986. Consequent on the introduction of Tariff Act, 1985 effective from 28-2-1986. Reclaimed rubber had been classified under Heading 4003.00 and Notification 120/75 rescinded. 2. Subsequently, M/s. Kerala Rubber Reclaims Ltd., have filed price lists under Part-I primarily to cover sales at factory gate and to their Madras branch office, and Part-II price list for sales to industrial consumers. M/s. Kerala Rubber Reclaims Ltd. entered into written contracts with M/s. Baldev Sons Industrial Corporation, Jullander and Bindu Rubber Industries Private Ltd., New Delhi and got approved Part-II price list. 3. But on subsequent verification it has been understood that M/s. Bal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such clearances will work out to Rs. 1,43,684.70. 5. It was therefore pointed out in the SCN that they have contravened the provisions of Rules 9(1), 173C, 173F and 173G of the Central Excise Rules, 1944. Inasmuch as they have manufactured and cleared the excisable goods of reclaimed rubber falling under sub-heading 4003 of the CET without paying full duty of excise leviable thereon, by suppressing facts in price list filed and by suppressing the fact of clearances to selling agents under the cover of price approval for industrial consumers and also contravening the provisions of the Central Excises Salt Act, 1944 and of the rules made thereunder with an intent to evade payment of Central Excise duty. 6. Thereafter, the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any previous contracts for sale with them. 10. He stated that the Addl. Collector ought to have noticed that insertion of names of the selling agents in the column provided for name of buyers in Proforma Part II, was occasioned by non-familiarity with the procedural provisions. In any view of the matter, it will not make any difference in fixing the assessable values in an enquiry under Rule 9(2) read with Section 11A, so long as sales have been effected to actual buyers at the price named in the price list and they do constitute a distinct class as explained above. 11. It was also contended that the Addl. Collector has missed the issue in holding that ingredients of normal sale are not satisfied as between the assessee and the selling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi. When the goods are sent to their selling agents at Punjab Delhi, the question as to whether they were selling the same to any particular buyers and the name of the buyers were not known at that point of time. At the point of removal of the goods the appellants was not in a position to say that the goods were not meant to be sold to any particular buyer. Therefore they were simply transferring the goods to their selling agents. It is at the point of removal of the goods the price is to be determined. At the time of removal of the goods it was not known as to who is the buyer then the price indicated in the transfer invoice raised by the selling agents cannot be accepted as the price of the goods. The reason is that there is no sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l rule for warehousing the goods which does not apply to this case. The appellant did not file any price list in connection with these goods which were being sent to the consignment agents. The assessee was unable to make any statement that the goods were meant for sale to Coal India Ltd. or for any Govt. Co. The Excise Officer was right in calculating the price which would have been payable by an ordinary customer as the `normal price of these goods. 16. In that view of the matter, it is seen that when the goods transferred from the manufacturing premises to the selling agents in Punjab Delhi there is no sale of goods involved and therefore the question of considering the value quoted in the transfer invoice or the invoice raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were sold. Therefore, the principles laid down by the Hon ble Supreme Court reported in 1997 (92) E.L.T. 289 (S.C.) = 1997 (20) RLT 658 in the case of IDL Chemicals Ltd. cited supra squarely applies to the facts of this case. 18. In order to apply the principles of Gora Mal Hariram case, there must be sale to a particular class of buyer. In this case, the transfer of goods to selling agent is not the sale and it cannot be said that selling agent is a class of buyer because they have not purchased any goods. 19. It is now seen that in Part-II price list they have shown the namesof Baldevsons Industrial Corporation and Bindu Rubber Industries Pvt. Ltd. But actually the goods have gone to be selling agents which fact was not mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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