TMI Blog1992 (12) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... Excises and Salt Act, 1944 declaring the price at which goods were sold at the factory gate filed by the appellants was approved by the Department. Apart from the factory gate sales the appellants were also selling goods at the approved ex-factory price to various dealers from their Depots at Bombay and Pune. In respect of the sales from their Depots they were also recovering certain additional charges on account of the incurred cost of transportation. Following the visit of the Central Excise Officers to the factory on 26-6-1986 for the scrutiny of their records the appellants were served with the show cause notice dated 16th July, 1987 alleging that they had misdeclared the assessable value of their products in the approved price lists fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaring the price of their products for sale to independent buyers at the factory gate were approved by proper officer of Central Excise. He drew the attention of the Bench to the statement at page 125 of the paper book. In this regard he also referred to the list at pages 126 to 135 of the paper book showing the names of the dealers to whom sales were effected at the factory gate during the relevant period showing the break-up of sales at the factory gate to independent buyers and from the depots at Bombay and Pune. He argued that during the relevant period about 40% of the sales made by the appellants being to various independent wholesale dealers at the ex-factory price, no other price could be taken as the basis of assessment and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (35) E.L.T. 605 4. On behalf of the Revenue the learned SDR referred to the order appealed against and stated that the Collector had arrived at the finding that the ratio of the Supreme Court s decision in the case of M/s. Indian Oxygen Ltd. was not applicable in the appellants case since they had failed to substantiate their claims on the basis of the relative volumes of sales at the factory gate and from the depots. He added that the Collector had also arrived at the finding that certain charges recovered by the appellants as a part of the transport charges were actually not attributable to expenses incurred on transport. On these grounds he pleaded for the rejection of the appeal. 5. We have examined the records of the case and cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d below : 4. Thereafter, demand-cum-show cause notices were issued by the respondent No. 3 on 9-8-1989 for the period between April, 1989 to June, 1989 (Anx. 1). The petitioner submitted a detailed reply dated 6-9-1989 (Anx. 2) before the respondent No. 2 and again pointed out that in view of the earlier orders passed by the Collector (Appeals) and also in view of the latest law laid down by the Hon ble Supreme Court in Indian Oxygen Ltd. (supra) and the various decisions of the Central Excise Appellate Tribunal the notice was wholly unjustified and the proceedings may be dropped. The Department informed vide their notice dated 12-2-1990 fixing the date of hearing as 22-3-1990. The petitioner moved an application on 15-2-1990 requesting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard at length in these writ petitions also along with the earlier set which is being disposed of by a separate order and therefore, it is not necessary to mention the arguments in detail in this order. 6. While allowing the writ petitions filed by the petitioners in the year 1989, we have observed that the Depot Service Charges and unloading charges cannot be included towards assessable value for the purpose of payment of central excise duty when the price at the factory gate was ascertainable. Therefore, we have quashed the show cause notices issued by the Respondent No. 3. 7. In the present set of writ petitions also, the facts are absolutely identical and similar." 6. Following the ratio of the decisions quoted above, we hold tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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