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TMI Blog2003 (4) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... 750/- more than the previous model). They started manufacturing the 130 DI Engines and intimated to the wholesale dealers on 15-7-1996 by means of Circular. The price fixed was also declared to the Central Excise Department, whenever there was any change in the price, the same intimated to the dealers by means of Circular and simultaneous declaration furnished to the Department. The price declared for the purpose of sale to the wholesale dealers, is in accordance with the provision of Sec. 4(1)(a) of the Central Excise Act, which was also adopted for the purpose of payment of Central Excise duty in respect of Engines cleared for captive consumption in manufacture of Tractors or Tillers. The same as adopted by the appellant in respect of all the other types of engines manufactured and cleared for the past many years. 3. A Show Cause Notice dtd. 24-10-2000 was received by the appellant alleging that the appellant had not correctly determined and adopted the price under cost construction method as set out by the Board vide Section 37B order dtd. 31-12-93 in respect of captively consumed 4782 Nos. of 130 DI Engines during the period from 26-7-1996 to 7-1-1996 in the declarations and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97 (v) 1972/30-7-1998 (ii) 4171/27-3-1997 (vi) 4543/26-9-1998 (iii) 2040/18-6-1997 (vii) 4691/8-1-1999 (iv) 2129/12-11-1997 It was therefore contended that when there are independent sales to wholesale dealers and that the price is genuine and true commercial price and also that there is no allegation of manipulated prices, this price alone is eligible to be the basis for assessment of captively consumed goods under Rule 6(b)(i) of Valuation Rules, 1975. 5. The ld. Commissioner vide his order impugned herein, has accepted that there are comparable prices, as sales have been effected on 27-3-1997 and 26-9-1998 vide invoice Nos. 4171 and 4543 respectively and adopted these prices only to the nearest to the date of captive consumption of 40 IC Engines effected on 27-3-1997, 26-9-98 and 28-9-98. For the rest of the clearances, he has considered that there is no comparable price and therefore taken the value under Rule 6(b)(ii) of Valuation Rules. He has also given a finding that except in the case of clearances of 40 Engines used captively, the appellant has mis-declared the value as comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substituted rule is under no obligation to visit, inspect, issue notice or to conclude on or after the scrutiny of declarations under the Rule within any specific time limit and/or approve the declared price lists. If the declaration is erroneous, extended period of limitation could be invoked on the allegations that the facts were wilfully suppressed. The plea of limitation therefore, cannot be upheld. (c) As regards the other issue at Sl. No. (ii) (a), whether the case was covered under Sec. 4(1)(a) of the Act or Rule 6(b) is applicable or not, is now considered. The ld. Senior Advocate for the appellants, has contested and contended that for the goods a price was available. It could be ascertained. It is the Department s case before us, also, that the first clearance to independent buyer was made only on 21-2-97 vide Invoice No. 4157. It is contended, therefore, before 21-2-97 up to 26-7-96, no sale price to an independent buyer at the factory gate was existing and the Commissioner was right in arriving at the following findings in Paras 21 and 22 of the order. 21...........On verification of the clearances for captive consumption, I find that the assessee have cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable price available as asserted by the assessee and the ld. Consultant except in case of clearances of 40 Nos. of IC Engines model 130 DI consumed captively..... (d) Considering the submissions and following the case law as relied upon by the ld. Senior Advocate, viz., - (i) 2001 (133) E.L.T. 166 (T) - Essel Packing Ltd. v. CCE (ii) 1989 (41) E.L.T. 602 (T) - HMT Ltd. v. CCE (iii) 1995 (77) E.L.T. 433 (S.C.) - Government of India v. Madras Rubber Factory Ltd. (iv) 1998 (100) E.L.T. 470 (T) - Knit-Foulds Private Ltd. v. CCE, Chandigarh (v) 2000 (121) E.L.T. 710 (T) - Ownes Brockway (I) Ltd v. CCE, Pune-I (vi) 1996 (88) E.L.T. 574 (T) - Amod Stamping v. CCE, Vadodara (vii) 1977 (1) E.L.T. (J177) - A.K. Roy Another v. Voltas Ltd. (viii) 2000 (118) E.L.T. 691 (T) - CCE v. Mohan Crystal Glass Works (ix) 1998 (102) E.L.T. 373 (T) - CCE v. Inalsa Ltd. (x) 1989 (43) E.L.T. 195 (S.C.) - Padmini Products v. Collector (xi) 1995 (76) E.L.T. 497 (S.C.) - CCE v. HMM Ltd. (xii) 1995 (75) E.L.T. 721 (S.C.) - Cosmic Dye Chemical v. CCE it is amply clear that when there was a sale price existing at the factory gate, whatever the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time the contract is made (Thames Sack Co. v. Knowles, 88 L.J.K.B. 585; distinguished Re Wait [1927] 1 Ch. 606). Where in respect of a consignment of unascertained goods there was more than one parallel contract and more than one supplier, the goods became ascertained for the purposes of this section when the goods comprising the whole of the consignment were ascertained in bulk. It was not necessary for the buyer to physically allocate the goods between the separate contracts and the different suppliers (Karlshamns Oljefabriker v. Eastport Navigation Corp., the Elafi [1982] 1 All E.R. 208). (6) The ascertained value of a ship under the terms of Charterparty T99, under which ships were requisitioned by the Shipping Controller during the European War 1914-1919 was held to mean the British market value placed upon her by an umpire at the time of her loss (Shipping Controller v. Lloyd Belge Ltd., 122 L.T 415). See cannot. to support the appellant s contentions that the findings arrived at by the Commissioner to resort to Rule 6(b)(ii), of the Valuation Rules, would not be correct and the declared price which could be ascertained by subsequent sales could be price at which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Invoice No. 4157 have been not found by the Commissioner to be considered for the purpose of comparable price as actual sale was not involved. He is rejecting that, as no sale tax was paid in respect of such clearances made. Payment of sale tax need not be criteria for considering that the goods are sold or not sold. The Commissioner has not applied Rule 4 or and Rule 5 of the Central Excise Rules. Resort to Rule 6(b)(ii) due to the stipulation under Rule 6 noted herein would render the determination of assessable value arrived to be not as per the Valuation Rules or and Section 4(i)(b) of the Central Excise Rules. Such valuation would therefore have to be set aside. (iii) We find that there is considerable force in the reliance of the definition and in the concept of the word ascertained and ascertainable as relied upon by the Senior Advocate to uphold the plea that under Rule 4 of the Central Excise (Valuation) Rules, 1975 to come to a conclusion that valuations could be based on subsequent sale prices to an independent buyer. The assessable value of the preceding clearances could be arrived at on such basis. No claims or abatements or additions or adjustments, as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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