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TMI Blog1998 (6) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... lated to a dealer Indian Chemicals and are falling within one class of buyers. It was also stated that each and every dealer/trader cannot be treated as different classes of buyers merely because they are located at different places and they submit purchase orders independently. 2.1 It is appropriate to set out the justification of fluctuating and lower prices of Hcl at which the respondent had to sell the product. We reproduce relevant extracts from their reply as set out in order-in-original as under :- (2). The product namely Hydrochloric Acid has a limited market and the commodity is not such in demand because its use is also very limited. The company sells the product to such customers as it can produce from time to time. There is no stead-fact price for the commodity as unlike other commercial products. In course of its business dealing, the company tries to sell the product to such sale purchasers as it can find through strenous effects of its sales organisation and the balance of the unsold stock remaining after the bulk sale has to be disposed of by the company to such sundry Customers as may be available at whatever prices are realisable from them. The company is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal)], and (ii) Bombay Latex Dispersion (P) Ltd. v. CCE [1985 (19) E.L.T. 527 (Tribunal)]. He has emphasised a quotation from Bombay Latex :- It might appear rather anomalous that what is a contract otherwise in terms of the provisions of the Contract Act, 1872, is merely an agreement and not a contract when it comes to a sale of goods. But that is because diversity, in the meaning ascribed to the word `agreement in the two Acts, while in the Contract Act, an agreement cannot amount to a contract unless it is enforceable in law, an agreement to sale goods in terms of Section 4 of the Sale of Goods Act presuppose that it is enforceable in law and hence, in reality, a contract to sell goods. A contract for sale of goods is, however, one of completed sale by the change in the title to an ownership in the goods. 3.2 After discarding the purchase orders and confirmation thereof as not being contracts, he infers that the customers cannot be considered to be different class of buyers. Consequently contract prices in form Part II cannot be approved. 3.3 He goes on to postulate that Section 4(1)(a) prescribes a single uniform normal wholesale price. 3.4 Different wholesale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents are valid under Section 4(1)(a). Relying upon an earlier order-in-appeal (135/BBSR/94) he has held that it is reasonable to assume that it is for the assessee to classify the buyers according to his commercial consideration, of course, the classification has to be rational and identifiable, based on purely commercial consideration. It could not be arbitrary or capricious, the classification of his buyers by the assessee is within the basic scheme for determination of the assessable value under Section 4 of the Act, then no objection could reasonably be raised by the Central Excise department for determining the assessable value on the basis of different prices to different classes of buyers (not being related person) . He has, therefore, remanded the matter for de novo decision in the light of the above observation. 5.1 Revenue has now filed appeal against the above order passed by Collector (Appeals). It is submitted by the Revenue in its appeal memo that the Collector (Appeals) has ignored the decision of Bombay High Court in the case of M/s Godrej Boyce Manufacturing Co. (P) Ltd. v. UOI [1984 (18) E.L.T. 172 (Bom.)] without giving any reasons. The High Court has held, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contracts, relying on Shakti Insulated (supra). In this manner contract prices have been discarded by the adjudicating authority. 7.3 We observe that the above ground has not been taken by the Revenue in its appeal memo, although the learned SDR Shri T. Prem Kumar has taken up that point in the course of his arguments when he cited a judgment WZB in the case of Gujarat Reclaim (supra) relying upon Shakti Insulated. 7.4 Strictly speaking, we are not required to consider that ground when the Revenue has not taken up that ground in its memo of appeal. Nevertheless, we would like to deal with the same. 7.5 We observe that Shakti Insulated (supra) has relied wholly upon Bombay Latex (supra) in coming to its conclusions that a document which is merely a confirmation order signed only by the appellants, and as such, on this very basis, it cannot be held to be a contract. It only shows the placement of orders with the appellants and their confirmation thereof. In this view of the matter, we find a lot of force in the findings of the Collector (Appeals) that the contracted parties are not in any way different from the other wholesale dealers... 7.6 We further observe that the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 4(1)(a). There is no allegation that any additional consideration - overt or covert - has flowed back from the customers to the respondents. Nevertheless, it is now a settled position, that there can be different prices for the same class of buyers in different places, as held by the Tribunal in Goramal Hari Ram (supra) and again in Travancore Cements Ltd. [1994 (71) E.L.T. 498 (Tribunal). Latter judgment also points out in para 23.4 of the said Report that Bombay High Court s judgment in Godrej Boyce Mfg. Ltd. has since been set aside by the Apex Court and the matter remanded to the High Court in SLP No. 14564 of 1987. Be that as it may, the said judgment of Bombay High Court in Godrej Boyce (supra) has been very rightly distinguished in both Goramal Hari Ram (supra) and Travancore Cements (supra). Revenue s main plank in its present appeal is, therefore, not sustainable. 8.2 Revenue s further reliance on Indian Oxygen Ltd. (supra) is not at all relevant. In that case, Revenue wanted to assess the goods cleared from depots at the prices prevalent at the depots, even though the normal price under Section 4(1)(a) was ascertainable at the factory gate. Such is not th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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