9911796707
TMI Blog1993 (8) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... E/575/93 to 583/93) and as those subsequently filed appeals are filed after the expiry of the period of limitation specified for filing the appeal, the appellants have filed applications (E/COD/75/93 to E/COD/83/93) praying for condonation of delay. 2.2 When only one order-in-original is passed covering more than one Show-cause Notice, it is not necessary to file separate appeals for each Show- cause Notice covered under the same order and a single appeal could be maintainable. The appellants have also filed only one appeal before the Collector of Central Excise (Appeals) and similarly only one appeal could have been filed before the Tribunal. In that case filing of separate appeals is not required. However, when they have chosen to file separate appeals, the same are also being disposed of by this order. Though the original appeal filed is within the specified period of limitation the other nine appeals are beyond the said period and hence, condonation of delay is prayed for. Considering the facts and circumstances and maintaining that such separate appeals are not called for the delay in filing these appeals is condoned. Having orally pronounced the decision at the commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 975, declaring the price as retail price to the customers and had been arriving at the assessable value and that all their price lists upto April 1986 were approved. They also referred to the letter dated 14-10-1977 from the Assistant Collector of Central Excise, Div. III, accepting their claim for 7.5% deduction, and that earlier thereto the price lists were provisionally assessed, but were subsequently finalised accepting the deductions as was evident from the letter dated 20-5-1975. The further contention of the appellants was that even subsequent thereto, the issue was revived and a Show-cause Notice dated 6-6-1984 was issued but the issue was again decided in their favour vide order of Assistant Collector dated 12-12-1984. On merits, they contended that Fork Lift Trucks were not sold to the wholesale dealers, or industrial consumers and their sales could not fall within the purview of wholesale trade as stipulated under Section 4(4)(e) of the CESA, 1944 as the sales were in limited numbers for personal uses and could not constitute sales in course of wholesale trade. According to them, the assessable value could only be determined under Section 4(1)(b) of CESA, 1944 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1984, it is not open to the department to raise an issue over again, the Ld. Sr. Counsel has submitted that even on merits, the appellants are justified in treating the sale of Fork Lift Trucks as retail and are eligible to get the deduction of 7.5% and have been correctly filing their price-lists in ProformaV. 4.2 Elaborating the contention, the Ld. Sr. Counsel has pleaded that the conclusion drawn by the authorities below is based on the nature of goods, whereas, the criteria applicable has been to consider the nature of transaction, when the question arises as to whether the transaction is in the nature of wholesale or retail. He has then referred to the decisions of the CEGAT in Collector of Central Excise v. Escorts Ltd. 1988 (33) E.L.T. 147 (Tribunal), Modi Zerox Ltd. v. Collector of Central Excise, 1989 (40) E.L.T. 481 (Tribunal) and Collector of Central Excise v. Indian Communication Network Ltd., 1989 (41) E.L.T. 643 (Tribunal) to substantiate his submission and has also referred to the decision in Collector of Central Excise v. Voltas Ltd., 1987 (27) E.L.T. 718 (Tribunal) where sale of Fork Lift Trucks manufactured by other manufacturers and sold in the same mode a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on replacement of Sec. 4 of the CESA, 1944 by the one as it now exists, with effect from 1-10-1975, the question of approval of price lists filed by the appellants in relation to Fork Lift Trucks, came up for consideration, and the Assistant Collector of Central Excise, Valuation and Classification, Cell, wrote to the Assistant Collector, Bombay III, vide his letter No. V(V-Cell)17-11/76/784 dated 20-5-1976 to approve the price lists allowing margin of 7.5% It appears that thereafter, also, the appellants filed price list in Proforma V showing the sale of Fork Lift Truck, as retail transaction but claimed deduction higher than 7.5% and hence a Show-cause Notice dated 30-8-1976 was issued. However, the appellants subsequently accepted availment of deduction at 7.5% and hence, vide letter No. PG/FT&PT/R. II/75/13118 dated 14-10-77, the said notice was withdrawn. There is nothing on record to show that any dispute as to the transaction being other than retail sale was ever raised at that time, though it appears that the price lists filed were in Proforma V (meant for retail transaction). However, a notice to Show-cause was issued on 6-6-1984 followed by two other such notices dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Notices do not raise any ground other than the one raised in the earlier Show-cause Notices adjudicated upon vide Order-in-Original dated 12-12-1984. However, when the earlier decision was brought to the notice of the adjudicating authority, in the impugned order, he has brushed that aside by observing : "The assessee's argument that reviewing again the same matter is not correct as the then Assistant Collector has decided the matter vide his Order No. V-CLVL/34/B G&B/IV/83/15310 dated 12-12-1984, is not acceptable to me as the period involved is different and as a quasi-judicial authority, the decision arrived at by my learned colleague is not binding upon me." To say the least, the approach is totally misconceived from any probable angle of vision. The order passed by the predecessor in office, also is an order from a quasi-judicial authority, and the adjudicating officer, being an officer of the same rank, is bound by the same, irrespective of the fact, whether he differs from that. Judicial discipline requires him to do so. Further, merely because the period of demand is different, there could be no alteration in the approach, as the basis for raising the demand rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealer (who in turn sells in retail to the consumer) or sale to individual consumers, Government or local authorities or other buyers, but that has been qualified by the words "who or which purchase their requirements otherwise than in retail". These words obviously go with the purchase in question, e.g. purchase of stationery for Government offices, or foodgrains for kitchens or Guest Houses run by the Government, local authorities or industrial houses, but could not stand attracted to the individual items which are not intended to be purchased "in bulk". The definition cannot and is not intended to be read as meaning that whatever item that the parties/institutions referred to, purchase, should be deemed to be in the nature of wholesale trade. 9.4 The Tribunal also had an occasion to deal with the issue as to what could be the wholesale trade, in Modi Zerox Ltd. v. Collector, 1989 (40) E.L.T. 481 (Tribunal), where the item concerned was photo copier machine, and the Tribunal observed that such machines would be used in various offices only, whether in Government or private sector and could not be considered as industrial raw material and a mere direct sale could not consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als, undisputedly, there is no sale to any dealer. It is not the allegation from the department that any of the customers under consideration has purchased the trucks for effecting any further sale. They all appear to have purchased them to be used in their normal activities, and the nature of transaction between the appellants and the consumers clearly indicates the sale in the nature of retail sale. Various invoices and contracts have been produced subsequent to the hearing. They are however not examined in depth as the Ld. SDR has no opportunity to comment upon them. But going by what has been virtually an admitted position, the separate sale transactions have been entered into with each individual consumer, at the price negotiated and with modifications supply of extra accessories as desired by each one of them. These are the major criteria which exist in the retail transactions and are generally absent in the wholesale trade, where general requirements of the consumers at large, as against specific requirements of each individual consumers, are considered. The sale transactions, therefore, provide clear indication of the sales being in the nature of retail sale. 10.2 Som ..... X X X X Extracts X X X X X X X X Extracts X X X X
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