Decided on October 18,2000



S.S.SEKHON,MEMBER (T) - (1.)THE present appeal relates to five price lists filed by a manufacturer of Phosphoric Acid and Hydrochloric Acid at its chemical division. These price lists were filed in Part II by the appellant in respect of sales made to other buyers, being the dealers and a separate class of buyers who purchase the requirements otherwise than in retail. The pattern of sales of the Phosphoric Acid to the customers was as under:
(i) Sales made to the industrial consumers

(ii) Sales made to wholesale dealers

(iii) Sales to other buyers.

There is no dispute as regards the sales made to industrial consumers. The dispute in the present appeal relates to clearances made from the factory to different wholesale dealers at different prices for which the appellant entered into contracts and filed Part II price lists. The department contend that since there was no distinction, there cannot be a different class of buyers of Part II and Part I price and the Commissioner (Appeals) rejected the price list and has rejected the appellant's appeal.

(2.)NOBODY appeared for the appellants. But vide their letter dated 11.10.2000 they had requested the matter to be decided on merits on the basis of the following decisions:
(i) PCMI Ltd. v. CCE, Madras, 1996 (63) ECR 298 (Tri.)

(ii) CCE, Meerut v. Dharampal Satyapal Ltd., 1999 (81) ECR 151 (Trib.)

(iii) Arkay Engg. Works v. CCE : 1999 (112) ELT 846 (Trib.) : 1999 (80) ECR 622 (T)

(iv) Bajaj Electricals v. CCE : 1998 (102) ELT 416 (Trib.)

(v) CCE v. Asatnco Plastic Industries : 1998 (98) ELT 116 (Trib.) : 1998 (74) ECR 619 (T)

(vi) CCE v. Taparia Tools Ltd., 2000 (89) ECR 56 (Trib.)

(3.)SHRI Section Kannan, Ld. DR appears for the department and submits that a class of buyer has not been defined in Central Excise Law and should be understood as the same class and no distinction can be made between wholesalers and special buyers and in this case those wholesalers who obtained goods on special contract price in Part II. Therefore, he supports the orders of the lower authorities and request for rejection of the present appeal.
We have heard the submissions and find that in the case of Synpro Industries v. CCE, Indore, vide their order reported at, 2000 (40) RLT 507 (CEGAT), Hon'ble President along with Shri C.N.B. Nair, Member (T) had held as follows:

It is clear from the records that Part II proforma sales were contract sales. It is settled law that such prices would rightly constitute the assessable value in respect of those goods and that the Part I price, covering the normal price at which goods are sold to dealers, would have no application for the assessment of goods sold on contract basis.

The Tribunal in the case of PCMI Ltd. v. CCE Madras, 1996 (63) ECR 298 had also held that assessees having different price structures for wholesale buyers in different places for valid commercial reasons should be treated as different class of buyers. In the present case before us relying on these two decisions, we find that the special buyers have been differentiated and can be considered as special class by themselves and the Part II price filed can be accepted relying on the above two decisions of the Tribunal.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.