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TMI Blog2023 (10) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority has taken up the de-novo adjudication and set aside the demand vide OIO No. 03/2011 dated 08.06.2011. Being aggrieved, the Department filed an Appeal before the Commissioner (Appeals). The Commissioner (Appeals) vide OIA No. 01/2012 (H-II) (d) CE dated 27.01.2012 set aside the OIO and remanded the matter for de-novo adjudication to the Adjudicating Authority. Being aggrieved, the Appellant has filed the present Appeal before the Tribunal. 2. Learned Counsel appearing on behalf of the Appellant submits that the core issue to be decided in the present case is whether the Appellant is correct in adopting the independent third party factory gate price for making the payment of Excise Duty when the goods are cleared to their depots. She submits that in the first round of litigation, vide Final Order No. 1135/2006 dated 04.07.2006, this Tribunal remanded the matter to the Adjudicating Authority to determine whether there existed a genuine factory gate price. However, he did not do justification while passing the de-novo OIO, because of which the Appellant had to approach the Commissioner (Appeals). Even the Commissioner (Appeals) failed to address the issue and the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to be decided by us are as follows: a) Is there a genuine factory gate price which can be considered as normal price under Section 4(1)(a) of the Act? b) If so, is the price only in respect of any particular buyer or particular class of buyers as per proviso (i) to Section 4(1)(a)? c) If there is no genuine factory gate price which can be considered as normal price under section 4(1)(a) of the Act as applicable to all buyers, has the value been correctly determined as per Section 4(1)(b) and the applicable Valuation Rules, especially with respect to allowing all the eligible abatements from the depot price? d) Has the extended period of limitation been correctly invoked? e) Was the penalty correctly imposed under Rule 173Q? 9. We find that Section 4(1) of the Act as applicable during the relevant period does not levy excise duty on the price but on the value and such value shall be a deemed value. If there is a normal price as per Section 4(1)(a), it shall be the deemed value, else it shall be the value determined as per 4(1)(b). Thus, as long as there is price under section 4(1)(a), it will be the value for determining the excise duty and not any other price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese, only seconds/rejects were sold to individuals and company employees and therefore, their price cannot be treated as normal wholesale value in the course of wholesale trade. The sale to Bikaner and Jaipur Trading Company was a negotiated contract price, who, therefore, constitutes a class of buyer by itself. This price cannot also (5) E/989/2012 be considered as a normal value. Similarly, Government undertakings and public sector undertakings can also be considered as a class of buyers and the price at which the goods were sold to them cannot be taken as normal price for all sales. 13. Learned counsel for the appellant has produced before us four spiral bound booklets with copies of ledgers of the appellant's sales during different periods covered in the present dispute as follows: a) Ex-factory dispatches of decorative laminates for April 1990 to March 1991 b) Ex-factory dispatches of decorative laminates for April 1991 to March 1992 c) Ex-factory dispatches of decorative laminates for April 1992 to March 1993 d) Ex-factory dispatches of decorative laminates for April 1993 to March 1994 e) Ex-factory dispatches of decorative laminates for April 1994 to March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich we raised in paragraph 8 above becomes irrelevant in view of our answers to questions (a) and (b) in paragraph 8 above that there was a genuine factory gate price under section 4(1)(a) and such price was not confined to any particular class or classes of buyers as evident from the ledgers produced before us by the assessee and lack of any contrary evidence on behalf of the Revenue. The mere fact that some statements were made before the officers by the employees and functionaries of the assessee will not advance the case of the Revenue when such statements are contrary to the evidence available on records. 18. The last question to be answered is whether the Commissioner was correct in confirming the demand after holding that there was a genuine factory gate price for the goods. As discussed above, as per Section 4 of the Act, as applicable during the relevant periods, value is deemed to be the normal price, i.e., the price under section 4(1)(a). The actual price at which the goods are sold in different invoices and to different buyers is irrelevant. It is also irrelevant as to what percentage of goods were sold at the factory gate price. Once the factory gate price was avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Order dated 09.05.2022, we find that the identical issue was before this Tribunal in respect of the same Appellant, wherein the demand was issued for the period April 1991 to September 1995. There is nothing to suggest that the practice adopted by them during April 1991 to September 1995 was different from the practice adopted by them during the present period of dispute i.e., April 1994 to September 1996. Even the Revenue has not come out with any counter argument on this count. Therefore, we proceed on the understanding that the procedure adopted by the Appellant right through April 1991 to September 1996 remained the same for the value adopted by them for clearances to their depots which is based on the factory gate sales done by them for which they have produced the documentary evidence before the Lower Authorities. The procedure for the discounts being given at depots remained same as per the earlier period. The earlier Final Order of this Bench has already gone into considerable depth and has allowed the Appeal filed by the present Appellant and dismissed the Appeal filed by the Revenue. There is nothing on record to show that this Final Order of this Bench was taken up fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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