2004 (12) TMI 94

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..... espondents' case. The said Rule, as it then stood, reads as follows :- "Rule 173C - Assessee to file price list of goods assessable ad valorem. - (1) Every assessee who produces, manufactures or warehouses goods which are chargeable with duty at a rate dependent on the value of the goods, shall file with the proper officer a price-list, in such form and in such manner and at such intervals as the Collector may require, showing the price of each of such goods and the trade discount, if any, allowed in respect thereof to the buyers along with such other particulars as the Central Board of Excise and Customs or the Collector may specify. .......................... (11) Notwithstanding the provisions of sub-rules (1) to (6), the Collector ma .....

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..... the State of West Bengal. They stated that a very negligible quantity was sold at factory gate and for trading purposes they were running a Sales Depot in Calcutta. It was claimed that the goods were cleared from the factory to the Depot at provisional price shown in the gate price and that duty was paid and payable on the basis of value finally shown at the time of sale from Sales Depot. In other words, they claimed that they were entitled to value the goods on the basis of challan and advice notes by virtue of Rule 173C(11). But there was no denial that the price at the factory gate was ascertainable and fixed. 5.The assessing authority held that the assessable value must be the value at the factory gate. In the Appeal filed by the Respo .....

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..... e normal price cannot be ascertained. In those cases goods are allowed to be removed on basis of price shown on the challan or advise note. But the framers of the Rule were careful enough to provide, in the proviso, that if the price on the challan or advise note does not represent the value as determined under Section 4 then there can be reassessment. 8.In this case it could not be shown that the price at the factory gate could not be determined or that the price at the factory gate was varying. Thus the assessing authority was right in holding that the value would have to be determined as per that price. The Tribunal was clearly in error in ignoring the proviso. 9.We are thus unable to sustain the order of the Tribunal. It is accordingl .....

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