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TMI Blog2002 (4) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... is impugned order has broadly summed up the allegations levelled against the noticee parties in the show cause notices as follows :- (i) That in respect of the sale effected by them for delivery at Hyderabad between the period from 1-1-95 to 27-9-95, at Bombay between the period from 1-1-95 to 21-8-95 and at Trichy between the period from 1-1-95 to 29-9-95 there was no 'factory gate price'; that the price in relation to the goods cleared to these places for delivery was not known at the factory gate and therefore, the value of the goods was to be determined with reference to the delivery price at these places; (ii) That M/s. KPL had been selling the goods at Hyderabad, Bombay and Trichy through their C F Agents only whereas in the rest of the country the goods were being sold direct to the dealers appointed by the company; (iii) That it was observed during the course of inquiry that there was a substantial difference in sale price of the goods as per invoices issued by the C F Agents at these places in comparison to the prices of the goods as declared in the invoices issued by M/s. KPL under Rule 52A at the time of removal of the goods from the factory to these places and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of State tax liability while leaving aside the dealer's margin which was not included for the purpose of calculation of State tax liability and thus the nature of dealer's margin is different from dealer's commission; (x) That M/s. KPL had devised a practice of fixing the wholesale price of the goods by their dealers and the sale price of the goods from the company was being worked out on the basis of the said wholesale price by their dealers by allowing discount deductions over the wholesale price to maintain the uniform price all over the country; (xi) That the entire sale proceeds including the amount of commission to be paid to the C F Agents are received by the company and accounted for as sale proceeds of the goods in their accounts and then the amount of commission is separately calculated and paid to the Agents out of sale proceeds. Thus, the value of the goods declared on the invoices issued under Rule 52A was not correct; and (xii) That the wholesale cash price has to be ascertained only on the basis of transaction at arms length and if there happens to be a special or favoured buyer to whom specially determined price is charged because of extra considerations, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e commission paid by the appellants to their agents. In respect of the sales made by the appellants in the Trichy region, however, it is admitted by the Commissioner in his order (para Nos. 56 to 58) that there are indeed sales made to the independent dealers in the State of Tamil Nadu in addition to the sales made to their C F Agents viz. M/s. Shree Samy Marketing Agency and M/s. S.S. Marketing Agency and as such the transactions with the other dealers have to be treated as independent sales, yet the adjudicating authority has held that the assessable value should be the sale price of these agents (including their commission) for all transactions in these regions since these agents are a class of buyers in themselves. It is held that in Tamil Nadu the assessee sells the goods to different classes of buyers and adopts different wholesale factory gate price with reference to each such class of buyers. It is observed that with reference to each one of them, the manufacturer can adopt different wholesale price which would constitute the normal price in terms of first proviso to Section 4(1)(a) of Central Excise Act, 1944. The ld. Consultant for the appellants submits that these aspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals). The department filed an appeal but the same is also rejected by the Tribunal. It is further contended that the present proceedings are also not maintainable on account of res judicata as also on limitation. In support of their contention that the buyers at the factory gate and the buyers procuring the goods through the consignment agents of the manufacturers do not fall in different class of buyers, the appellants are placing reliance on the decision of the Tribunal in the case of CMC (India) Limited v. CCE - 1997 (95) E.L.T. 255 (T) and in support of their contention of res judicata, the reliance is placed on the case of CCE v. Pace Marketing Specialities Limited - 2000 (119) E.L.T. 77 (T). The ld. SDR appearing for the respondents reiterates the findings arrived at by the Commissioner in his order. 6. We have considered the submissions made before us by both the sides. The issue under consideration in the present proceedings is whether the appellants have paid the duty at the appropriate assessable value in respect of the sales made by them through their consignment agents in Bombay, Hyderabad and Trichy. In our considered view, this issue already stands settled b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endency of the appeal before this Tribunal the adjudicating authority re-examined the entire issue and passed Order-in-Original No. 38-Demand/ACK-III/97, dated 18-6-97. By that order he confirmed the demand made in all the Show Cause Notices amounting to Rs. 6,09,75,357.23. Manufacturer challenged that order before Commissioner (Appeals), Appellate Authority by order in appeal No. 260-CE/ APPL/KNP-I, dt. 28-11-97 allowed the appeal. Hence Revenue has come up in appeal. 3. Appellate Authority posed the following three questions for decision :- (i) Whether different normal price of the same goods to customers in different regions is permissible under Section 4. (ii) Whether buyers in different regions are different class of buyers in the eye of law. (iii) Whether the contrary instruction issued by the Central Board of Excise Customs is valid and enforceable when it was declared invalid and against the status by the Delhi High Court. 4. The three questions posed have been correctly answered by the Commissioner. Now the argument advanced by the ld. DR is that the manufacturer was transferring their stock to the various depots/States for sale by the dealers situated in those ..... X X X X Extracts X X X X X X X X Extracts X X X X
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