TMI Blog1988 (7) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... is not for sale. Mere transfer of the material from their Barari Unit to their other units cannot be regarded as sale, it is stated. Further, it is claimed by the respondents that the containers in which truity fruity is packed are not designed to hold pre-determined quantity of goods. 2. On the other hand, the Assistant Collector, who adjudicated the matter found that truity fruity, which were in fact boiled sweets/fruits, used in the manufacture of bread etc. was saleable in the market, although it was not being sold because the respondents were not manufacturing it in sufficient quantity to meet the demand of other consumers. The Assistant Collector has referred in his order to the definition of sale as contained in Section 2(h) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Assistant Collector. It is against this order that the department has come up in appeal before us. 4. We have heard Shri L.C. Chakravarti, JDR for the department and Shri J.M. Ojha, consultant for the respondents. 5. At the outset Shri Ojha raised an objection that the appeal is barred by time. After hearing him we rejected the contention. This is for the reason that the appeal had been received by the Registry on 24.11.1987 and the date of communication of the impugned order is mentioned as 25.8.1987, and, therefore, the appeal had been filed within 3 months period. The contention of Shri Ojha was that the appellate order should have been received on 20.8.1987 and not 25.8.1987. He based this argument on the fact that the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made before us. As per the order in appeal the transaction between the manufacturer and the branches cannot be considered as sale because it is mere transfer of products to these branches on book adjustments. We are unable to accept this finding. The learned Collector (Appeals) in this connection ignored the definition of sale as contained in Section 2(h) of the Central Excises and Salt Act, 1944, which clearly includes transfer of the possession of goods of the kind as represented by the transactions in this case. There is no denial on behalf of the respondents that the transfer memos are indicative of their being monetary consideration in the transaction between the transfer and transferee. Merely because there is no payment in cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck to the branch offices. The issue in both the said cases related to transfer of stock from the Head Office to the branch offices for sale by the branch offices. It was held that the sale by the branch office was a resale by the company and not a resale by the branch office only. So far as our case is concerned it should be seen that in all the instances of transfer of stock, there was adjustment of cash by way of such stock transfer. It was evidently in the nature of a sale from the appellant unit to the other units for consideration, though by book adjustment. In the circumstances the conclusion of the lower authorities that the transaction was in the nature of sale as defined under Section 2(h) of the Central Excises and Salt Act is cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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