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TMI Blog1986 (5) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... sed wholesale dealers from their depots and the Bata shoes are marketed by them through their own retail outlets. It has been held by the Board and the Appellate Collector that so far as the BSC brand shoes are concerned, the price list of the same will be fixed under Section 4(1)(a) read with Section 4 sub-section 2 and so far as the Bata brand shoes are concerned, .the value of the same will be fixed under Section 4(1) read with Rule 6(a). So far as the issue relating to the valuation of BSC shoes, the learned advocate for the appellants, Shri Bajoria, stated that he is not contesting the valuation of these shoes in terms of Section 4(1)(a) read with Section 4(2) in view of the latest pronouncement of the Supreme Court in the case of Bombay International Tyres 1983 E.L.T. 1986. The issue, therefore, to be decided by us relates to the Bata brand shoes. In this connection, the respondents wanted to file some additional evidence to show that the Bata brand shoes are also sold in the wholesale lots to independent buyers. This evidence was not produced at any stage before the lower authorities, that is, either before the Assistant Collector Appellate Collector or the Board, who passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk the goods for the stream of sale in which the goods are to be sent for sales through retail shops of Bata or through the wholesale dealers. 4. Shri Tripathi, the learned SDR for the Department pleaded that the Bata brand goods and BSC brand goods were known in the market commercially as two separate category of goods and that they were not such goods. He has pleaded that the test of commercial parlance as upheld by Supreme Court and various High Courts should determine the basis for arriving at the value. He stated that since the goods are known as two separate category of goods, the value of these should be arrived at independently based on the parameters of Section 4 of Central Excises Salt Act, 1944 as applicable to each category of goods. He has cited in this regard the examples of lux-and lux supreme which are priced differently. He further pleaded that BSC brand shoes could be sold at a lower price while in the case of Bata brand product, the prices are ilxed. He further pleaded that in the case of BSC shoes, no sales tax is paid. He also stated that in the case of Bata there is a guarantee for repair of manufacturing defects within a short period. He, however, could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y way, in quality or are different in any other manner except the brand names these are carrying. It is also admitted that before coming into force of the new Section 4, both brands of shoes of the same type were assessed at the same assessable value. The Board have observed as under in their order No. 4 of 1980, dated 22-10-1980 which is subject of the appeal before us: With regard to the Bata brand of footwear, the party had contended that Rule 6(a) of the Valuation Rules, 1975 has no application as the Bata brand, both with regard to quality and value, was identical with their BSC brand of footwear. In support of this contention, the party produced at the time of personal hearing a copy of an order passed by the erstwhile Central Board of Revenue in Central Excise Appeal No. 6 EXM II of 1956, dated 2-5-1956, wherein the said Board had held that the Bata footwear and BSC footwear were goods of the like kind and quality . The party pressed that manufacturers being the same and the value and the quality of the goods being the same, the Bata and the BSC brands of footwear should be assessed in the same manner, and since the value of the BSC brand of footwear was known, the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a person or thing or persons or things; the person or thing or persons or things indicated; as, once a friend but no longer such. - adv. So, very, in such a manner, or to such a degree, used to precede an attributive adjective; as, such terrible deeds. - as such, as being what is indicated or implied, as: The leader, as such, is entitled to respect. In itself, as; Vice, as such, does not appeal to him. - such for example; of the indicated or implied kind; as, a picture such as this one. The new Section 4 reads as under: Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section, be deemed to be - (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale: The old Section 4 reads as under: Statutory changes. - Section 4 as it originally stood, was as under: 4. Determination of value for the purpose of duty. - Where, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We observe that the value for assessment purposes under Section 4 is deemed value. Deemed value, being notional in nature by its very nature, need not be of identical goods. 7. We do not find any authority quoted in the Order of the Board as to why Bata brand of goods cannot be treated as such goods as BSC brand. It has rather been conceded that these may be similar goods but goods of different brands manufactured by the same assessee and hence not such goods for the purpose of Section 4. The Board has not gone into the question as to how affixing of brand name changes the character of the goods for the purpose of Section 4. The brand names, as it is, are affixed on the goods to identify the product with the manufacturers. The definition of the Trade Mark which is in the nature of brand name as given in the Trade and Merchandise Act is as under: Trade Merchantile Act- Section (2)- ...(iii) The trade mark means (i) in relation to Chapter 10 (other than Section 81), a registered trade mark or a mark used in relation to goods, for the purpose of indicating or so as to indicate, the connection in the course of trade between the goods, and some person having the right as a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of Bata Company. 8. The commercial parlance criterion as upheld by the Courts in respect of the classification matters whereby the goods are required to be classified based on as to how the goods are known in the trade by those who deal in that product, cannot be extended for the purpose of Section 4 under which the parameters for arriving at the assessable value for the levy of Central duties are clearly set out. Section 4 does not admit of commercial parlance criteria in this regard. Only question to be answered is whether both Bata and BSC goods are such goods as Bata brand goods and whether the affixing of brand name amounts to manufacture to make the goods as being of different category. In respect of both as we have held above, the answer is in the negative. In view of the above, we hold that the wholesale price, which is available for BSC brand of shoes is applicable to the Bata brand of shoes for the purposes of Section 4 of the Central Excises Salt Act. Before parting with the case, we would like to observe that neither appellants nor the respondents have done any exercise in respect of Bata shoes as held by the lower authorities under Rule 6(a) of the Valuatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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