9911796707
TMI Blog2002 (11) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 (74) E.L.T. 528 (Gau); (iii) Southern Bottlers - 1989 (43) E.L.T. 427 (T) [Approved by the Supreme Court in 1997 (92) E.L.T. A 70 (S.C.)]; (iv) Savita Chemicals Ltd. - 2000 (119) E.L.T. 394 (T) [Approved by the Supreme Court in 2001 (130) E.L.T. A 262 (S.C.)] and (v) Castrol India 2001 (135) E.L.T. 958 (T). 2. In these judgments it has been laid down that where there is a factory gate price available and where such factory gate sales are at arms - length, the factory gate price is the price that must form the basis of the assessable value even if the assessee sells goods at a higher price from its depots. 3. The Appellants sell nearly 25% of their production at factory gate. They also sell goods through their regional depot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The demand is also hopelessly time-barred. The show cause notice issued by the Commissioner is dated 27-7-1993 and seeks to demand duty for the period July 1988 to June 1992 on the ground that the Appellants had suppressed the fact that they were recovering a higher price in respect of the depots sales. This contention is ex facie erroneous for the following reasons : (i) As far back as 25-11-1987 the Audit Party after inspecting the depot invoices issued a query memo, specifically stating that the depot invoices revealed that the Appellants were selling the products at an increased price over and above the cum-duty price which had been approved by the proper officer. They in fact purported to allege that the depot was related perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to infer that from the questionnaire the department would be in no position to know that the price realized by the assessee from the depots was higher than the factory gate price. This reasoning is manifestly specious as the department were aware that the depot prices were higher than the factory gate price right from 1987, which has been conveniently ignored by the Commissioner. 10. The imposition of penalty is also ex facie illegal as there has been no mens rea whatsoever. 11. It is submitted therefore that the appeal should be allowed." 2. Shri. M. H. Shaikh, learned DR appearing for Revenue fairly concedes that the appellant's case cannot be distinguished from the case of Indian Oxygen. 3. After hearing both sides a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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