TMI Blog1999 (12) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the manufacture of aluminium. Out of the total production of alumina, about 50% is exported by the appellant, 44% is consumed in the production of aluminium metal in their smelter plant at Angul by way of transfer, of stock in Part VI price list and the balance amount is sold to M/s. BALCO who is also a manufacturer of aluminium metal in the public sector and small quantities of alumina are also sold to casual buyers of the factory gate. For sale of alumina to the buyers at the factory gate the appellants filed a price list in Part-I with remark that - this price list is applicable to only supply of calcined alumina to customers lifting small quantities without formal purchase order . 2. The Department s contention is that the price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uyers who are not even aluminium manufacture, the final product, for which alumina is mostly used. He submits that the bulk buyers and casual buyers are two different class of buyers and different prices charged from them are justified. He submits that if at all the sale price of the appellants has to be adopted as the assessable value for captively consumed alumina the price at which the goods were being sold to BALCO would be more appropriate. In support of his above submissions he relies upon a number of judgment of the various authorities. On the other hand Shri N.K. Sarkar, learned JDR appearing for the Revenue submits that if the assessee is covered by the provisions of Section 4(1)(a) the provisions of Section 4(1)(b) are inapplicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of refractories and need a very small quantity of alumina on rare occasions and not on regular basis. These buyers come for spot purchase and as contended by the Advocate the price cannot be taken as of representative character of the price. 4. In the case of Godrej Soaps Ltd. v. C.C.E. - 1999 (111) E.L.T. 374 (T) it was held that Clause (i) of the proviso to Section 4(1)(a) recognizes the legality of different price for different class of buyer for the same product where there is a practice of sale at different price to buyers of different classes. Commercial consideration that would apply to the sale of goods to one class of buyer may not apply to buyer in another class. 5. Similarly in the case of Metal Box India Ltd. v. C.C.E., M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action in adopting the lower selling price at which the goods were being sold to bulk buyers was upheld. 9. In the case of D.C.W. Ltd. v. C.C.E. - 1992 (62) E.L.T. 153 (T) it was held that industrial consumers are a class of buyers and the factory gate price approved under Pt.-II price list in respect of industrial consumers who are a class of buyers is deemed to be the normal price. 10. The ratio of all the above decisions is to the effect that the stray sales made to customers who are not similarly situate cannot be considered as a normal factory gate selling price under the main clause of Section 4 and that there can be different class of buyers for which different factory gate sale price may prevail. As is undisputed on record that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants was raised by adopting the price at which the appellants purchased the alumina from M/s. INDAL for a short period. No appeal was filed against the above order by either side. As such the appellants contention that the said approval of the price list had become final and it was not open to the Department to restart the process by way of issuance of show-cause notice on 22-8-1989 proposing to revise the approval of the price list No. 2/87 with retrospective effect. On this issue we find that the Constitution Bench of the Hon ble Supreme Court in their Judgment in the case of C.C.E., Baroda v. Cotspun Ltd. 1999 (113) E.L.T. 353 (S.C.) = 1999 (34) RLT 709 have held that no short-levy can be said to have occurred when the duty was bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure of Chapter X they would still be entitled to the benefit of Notification No. 217/86 for the above period as has been held in the case of Thermax v. C.C.E. - 1992 (61) E.L.T. 352 and by the Bombay High Court in Solar Pesticides v. UOI - 1992 (57) E.L.T. 201 as also by the C.B.E. C. Circular dated 27-7-1987 which is to the effect that, the benefit of concession should be granted when even intended use of material can be established by other evidence. 13. We find in the present case that there is no dispute about the fact that the calcined alumina manufactured in appellant s factory at Damanojodi was being used for the manufacture of aluminium in the appellants another unit at Angul. As such the same would be entitled to the bene ..... X X X X Extracts X X X X X X X X Extracts X X X X
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