TMI Blog1986 (11) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... on working capital. The deduction claimed was at 9.66% for diesel fork lift trucks and 10.49% for battery operated fork lift trucks. The Assistant Collector in approving the price list held that the deduction claimed under the above heads was not covered by the provisions of Rule 6(a) of the Valuation Rules and was hence not admissible. He, however, held that he was permitting deduction to the extent of 7.5% on the retail prices declared. The assessee appealed and the Appellate Collector, under order dated 12-8-1976, set aside the order of the Assistant Collector on the ground that it was not a speaking order and that no opportunity had been given to the assessee to make representations before the Assistant Collector passed the order. He r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for the conclusion of the Assistant Collector that there was available a wholesale price for the subject goods and, therefore, the assessable value was to be determined in accordance with Section 4(1)(a) of the Central Excises and Salt Act. Accordingly he remanded the case to the Assistant Collector with a direction to redetermine the assessable value under the provisions of Section 4(1)(b) of the Central Excises and Salt Act read with the relevant Central Excises (Valuation) Rules. He directed that in doing so the Assistant Collector shall determine the extent to which the assessee would be entitled for abatement under the various heads claimed by the assessee. 2. The Central Government, being of the view that the abovesaid orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Collector had set aside the order of the Assistant Collector in toto the Assistant Collector was not bound, in the de novo adjudication, by the relief of abatement by 7.5% granted by his predecessor. While it is true that under the order of the Appellate Collector dated 12-8-1976 the order of the Assistant Collector had been set aside in toto, it may be observed that when, in pursuance of the remand order, the Assistant Collector took up de-novo proceedings he issued a notice dated 15-10-1976 to which was added an annexure. The last paragraph in the said annexure reads as follows : Such deduction claimed by assessee appears to be very high, and since the value to be approved is to be determined under valuation rule 6A(SIC), it is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable a wholesale price. But yet this is what has been done by the Assistant Collector under his order dated 13-9-1978. Rule 6(a) of the Central Excises (Valuation) Rules reads as follows : Where such goods are sold by the assessee in retail, the value shall be based on the retail price of such goods reduced by such amount as is necessary and reasonable in the opinion of the proper officer to arrive at the price at which the assessee would have sold such goods in the course of wholesale trade to a person other than a related person. Thus, in issuing the show cause notice dated 15-10-1976 the Assistant Collector not merely mentioned in his annexure that the sales were in retail but pressed into service a rule which dealt with cases o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sar relied on the decision of this Tribunal in Collector of Central Excise, Madras v. Madras Rubber Factory Ltd. [1984 (Vol. 18) E.L.T. 111]. That was also a case of review notice by the Government. The question therein also was as to what would constitute sales to a wholesaler and what would constitute a retail sale. The Tribunal, after an elaborate consideration of the various submissions made by both parties, observed in paragraph 19 as follows : From the above meanings, it is obvious that the concept of re-sale to consumers is built into wholesale". In other words, one purchases goods in wholesale in order to sell them in retail to consumers. The trading interest referred to by Shri Raghavan Iyer is very much there in a wholesale pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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