Kania, J. - (1.) These appeals arise from a judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (South Regional Bench) at Madras.
(2.) The facts necessary for the disposal of these appeals are as follows: The appellant is a manufacturer of motor vehicle parts falling under Item 34-A of the Central Excise Tariff and components for I.C. Engines falling under Item 68 of the said Tariff. The period with which we are concerned in these appeals is the period from Oct. 1, 1975 to July 21, 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 October 1, 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, therefore, directed the appellant to file price lists in Part IV in the form prescribed for sales to related persons. The appellant filed the price lists in Part II, Part IV and Part VI. The price lists filed in Part II related to sales to industrial buyers, Government Bodies and so on who were admittedly not related persons regarding the appellant. These price lists were duly approved. It was regarding the price lists filed under Part IV that the Assistant Collector on the basis of the aforesaid view directed the appellant to file revised price lists showing a discount of 121/2% from the price at which the goods supplied by the appellant were sold by their distributors to independent buyers. The appellant complied with this direction under protest taking up the contention that the distributors were also a class of independent buyers. This claim was rejected by the Assistant Collector who took the view that the distributors were related persons and hence the prices charged by these distributors to their purchasers should be taken as the assessable value. This was contested by the appellant before the Collector (Appeals) who by his order dated July 27, 1984 took the view that the distributors were not related persons, on the basis of the decision of this Court in the case of Union of India v. Bombay Tyres International Ltd., (1983) ELT 1896. The appellant applied for a refund on the ground that the excise duty had been collected from the appellant on the footing that the distributors 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 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 for determination before the excise authorities and the protest made by the appellant was only in respect of the assessable value regarding the said two, categories of sales to wholesale distributors/ primary wholesellers and to O.E. manufactures. On the basis of these conclusions, the Tribunal dismissed the appeal of the appellant. The present appeals are directed against this decision of the Tribunal.
(3.) It was submitted by Mr. Divan, learned counsel for the appellant, that the decision of the Tribunal was erroneous and liable to be set aside as, for purposes of levy of excise duty on the sales in question only one price can be treated as the normal price and, as the distributors were held not to be related persons, it was the wholesale price at which the goods were sold by the appellant to the distributors which must be held to be the normal price. It was pointed out by him that all the circumstances show that the payment of excise duty was made under protest and that the returns were originally filed only on the basis of the single normal price, namely, the price at which the goods were sold by the appellant to the distributors. Learned counsel drew our attention to the provisions of Section 4 of the Central Excises Act. The relevant part of Section 4 runs as follows: "4. Valuation of excisable goods for purposes of charging of duty of excise.(1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject 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.;