9911796707
TMI Blog2004 (11) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... at which the Respondent Company proposed to sell in the wholesale market. The second price list contained the prices at which they proposed to sell the same items to M/s. Tata Engineering and Locomotive Company (in short "TELCO"), M/s. Tata Robins Frazer Ltd. and M/s. Stark Motors. In the second price list the price to M/s. Tata Robins Frazer Ltd. and M/s. Stark Motors was shown to be the same as the wholesale price however the price to M/s. Tata Engineering and Locomotive Company was shown to be lower. 3.A show cause notice was issued to them as to why the prices to TELCO should not be fixed at the same price as in respect of the sale to the wholesale market and to the other two Companies. 4.The Appellant filed a reply to the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his order. The only submission which appears to have been made was that TELCO was a different class of buyer and that therefore they were entitled to charge a different price from TELCO. The Collector (Appeals) allows on the following reasoning :- "On close study, I find that the appellant had submitted the impugned price lists in part II meant of sale at different prices to different classes of buyers. It is fact that the expression 'class of buyers' is not defined under Sec. 4 of the said Act. But keeping in view of the definition of "wholesale trade" in terms of Sec. 4(4)(e) it can be held that dealers, industrial consumers, Govt., local authorities etc. constitute different class of buyers. As per stipulations of Sec. 4(a)(i) if an ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he price at which the goods were proposed to be sold in the wholesale trade. The proviso to this Section is an exception to the general rule. The proviso comes into play in cases (a) where there is a normal practice in the wholesale trade in such goods and (b) such goods are sold by the assessee at different prices to different class of buyer. To claim benefit of this proviso, a trade practice must be averred and shown to exist and it must be shown that there is a different class of buyer. As set out above, the Collector (Appeals) notes :- "Whether a particular buyer constitutes a class of buyers or not, will depend upon the trade practice." Yet the Collector (Appeals) then ignores the fact that there is no averment nor proof of any trade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich Appeal has been dismissed by the impugned judgment. The impugned judgment is virtually a one paragraph judgment which reads as follows :- After hearing the learned J.D.R., we"4. observe that the Commissioner (Appeals) in the impugned order has observed that if an assessee sells their goods at different prices to different classes of buyers, such prices would be deemed to be normal prices of such goods, if such buyers are not related persons; that the Assistant Commissioner could not establish any relationship between M/s. T.E.L.C.O. and the Assessee. The Commissioner (Appeals) also observed that whether a particular buyer constitutes a class of buyers or not, will depend upon the trade practice. Each buyer is a class by itself since he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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