9911796707
TMI Blog1990 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... period from 1-10-1975 to 21-7-1984. The marketing pattern of the appellant was that they sold goods in the wholesale to O.E. manufacturers, Transport Undertakings and Government Bodies. The requirements of the replacement market were met by the appellant by sale in the wholesale to other persons who were designated by the appellant as distributors/primary wholesale buyers on the basis of agreements with such distributors. The amendment to Section 4 of the Central Excises and Salt Act, 1944 (hereinafter referred to as "the Central Excises Act") came into force from 1-10-1975 and, as from that date, the Department took the view that sales by the appellant to its distributors would be considered as sales to related persons. The Department, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors were related persons and that, in view of the finding that the distributors were not related persons, the excess amount should be refunded to it. This contention was rejected by the Assistant Collector and on the ground that except in respect of sales to wholesale distributors/ primary wholesellers and O.E. manufacturers, the excise duty had been paid by the appellant voluntarily. Against this decision, the appellant preferred an appeal to the Tribunal. The Tribunal, however, confirmed the view of the Assistant Collector on the ground that the other modes of sale like depot transfers, retail sales, direct dealer sales, sales to transport undertakings and sales to Government bodies like transport undertakings had not figured as issues fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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." We are not concerned with the proviso to this section for the purposes of this appeal. Learned counsel submitted that the language of Section 4(1) suggests that there can be only one normal price for sales to independent distributors. 4. Learned counsel for the appellant also drew our attention to the decision of this Court in Indian Oxygen Ltd. v. Collector of Central Excise -1988 (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted by learned counsel for the appellant that in the present case the letter of protest sent by the appellant, on a commonsense reading thereof, covered the entire payment of excise duty in those cases where the normal price was fixed on the footing that the distributors of the appellant were related persons and submitted that in view of this no question of limitation would arise in considering the application of the appellant for refund. The learned counsel drew bur attention to the decision of the Special Bench of the Tribunal in Collector of Central Excise, Madras v. Ashok Leyland Ltd., Madras -1987 (29) E.L.T. 530 where on similar facts a Special Bench of the Tribunal had taken the view that even removals for captive use and retail sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t made by the appellant must be read as limited to the cases of sales by the appellant to its wholesale distributors/primary wholesellers and to O.E. manufacturers and that the other categories of sales like stock transfers, clearances to retail sellers and other wholesale sales to purchasers other than distributors must be held not to be covered by the protests. He placed strong reliance on the observation of this Court in Assistant Collector of Central Excise & Ors. v. Madras Rubber Factory Ltd. & Ors. -1987 (27) E.L.T. 553 (S.C.) where it has been held (page 20 of the report) that the different prices can be normal prices for the purposes of the determination of the assessable value of an article. In that case, however, it must be apprec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rule can come into effect. This rule does not prescribe any particular form of protest and hence it is not possible to say on the basis of this rule that the appellant-assessee in this case must be deemed to have paid the duty without protest. 11. In the result, the appeal is allowed. The order of the Tribunal is set aside and it is held that the assessee is entitled to refund where excise duty has been assessed and collected from the assessee at a higher rate on the footing that the wholesale distributors of the assessee were persons related to it, that is, in respect of the .other categories of sales, namely, retail sales, sales to dealers, sales to State Transport Undertakings and export clearances. Looking, however, to the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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