2004 (12) TMI 429

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..... nd had paid duty on such lesser prices. The Department took the view that duty should have been paid on the price fixed by DPCO, taken as assessable value. Accordingly, the Department alleged undervaluation against the assessee and raised a demand of differential duty on them. This demand was contested by the assessee in adjudication of the dispute, ld. Commissioner of Central Excise vacated the demand, after holding that what was fixed by DPCO was only the maximum price and that it was open to the manufacturer to sell the bulk drugs at lesser price and pay duty on such lesser price taken as transaction value. Hence this appeal of the Revenue. 2. Ld. SDR reiterates the grounds of this appeal and relies on the Supreme Court s judgement in .....

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..... en reproduced in ground No. 2.1 of the grounds of appeal reads as under : Where goods are sold by the assessee in the course of wholesale trade for delivery at the time and place of removal, at a price fixed under any law for the time being in force or at a price fixed under any such law, then notwithstanding anything contained in clause (iii) of this proviso, the price, or the maximum price as the case may be so fixed shall in relation of the goods so sold be deemed to be the normal price thereof. Ld. SDR has highlighted the expression price fixed under any law . No doubt, DPCO is a law. But as we have already noted, no price was fixed inflexibly by that law for any of the scheduled bulk drugs. What was fixed by DPCO was a maximum .....

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..... e Apex Court in Aluminum Industries (supra). It is stated that if the sale price is below the statutory price, even then the price so fixed by law should be the assessable value and not the actual sale price... We are afraid, we can hardly accept this as any converse of what was held by their Lordships in the case of Aluminum Industries (supra). In that case, the price control order had fixed the price of aluminium rods unlike in the instant case wherein DPCO fixed only maximum price with an injunction against exceeding it and it was open to the bulk drug manufacturer to sell his goods at a lower price. Moreover, the respondent s consistent case, throughout, has been that the price at which they sold their bulk drugs was the normal price .....

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