TMI Blog2015 (4) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... apparently not correct. As regard the variation of the price from one state to another state, we find that the retail sale price remain same in all over India, however the wholesale price/assessable value varied from one state to another state only for the reason that in different state Sales Tax and Octroi rates are different. Therefore the rate of margin indeed the same and uniform, the variation is only on account of Sales Tax/Octroi. As regard the debit notes, we find that this practice is not followed in each and every case as against the total sales. Only few debit notes were issued for an amount of ₹ 2,41,337/- therefore in our view merely because the debit note of ₹ 1,46,706/- was issued, entire sale cannot be weighed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is selling the goods the wholesale dealers for which they filed a price declaration to the department, however in the price declaration they have not declared the deduction of 9.5% margin given to their consignment agent/distributors out of which, however 2% margin was for replacement of goods damaged in transit before arriving at Depot. The appellant were issuing debit notes to their distributors/consignment agents for the said 2% margin of replacement. The said deduction was a mutual agreement entered by the appellant with their consignment agent for protection against any damage and spoiled goods received by the consignment agents. The Revenue contented that since 2% margin was not claimed by the appellant in price declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the same price is charged to their distributor/consignment agents. Therefore the wholesale price is assessable value which is correct value on which excise duty is charged. It is his submission that they have issued a debit note in very few cases but at the same time they have issued credit notes also for huge amount and the amount of debit note was not collected by appellant. He submits that credit note amount cannot be treated as flow back of money. He submits that as regard the contention of the Revenue that there is no uniform margin and it is varying for different region, the learned Counsel submits that in every region/states the retail price of the product is uniform however the assessable value gets varied for different region ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case there is no dispute the 2% margin on account of replacement was uniformly given to their wholesale buyer in all over India, therefore cannot be said that the 2% margin given is not uniform. He further submits that as per Section 4 of the Central Excise Act, 1944 the concept of normal sale price is wholesale price and not the retail price. In the present case the wholesale price at the time of sale of goods or whole sale buyer and thereafter whether it is 7.5% + 2% margin. It is the margin of the wholesale buyers towards selling of their goods to the retailers. Therefore, if the contention of the Revenue that the assessable value should include 2% margin then the value shall not be wholesale value, it will be retail sale price w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (218) ELT 8 (S.C.) (iv) Krishna Industrial Chemicals Ltd. Vs. CCE - 2002 (146) ELT 565 (Tri.-Chennai) (v) Shree Gobinddeo Glass Works Ltd. Vs. CCE - 2001 (134) ELT 182 (Tri.-Kolkata) 5. We have carefully considered the submissions of both sides and gone through the various judgments. We find that the appellant in the marketing policy explicitly declared to their wholesale buyer in all over India regarding the margin of 2% towards damage and replacement. It is also found that this 2% margin was allowed to each and every wholesale buyer. Therefore contention of the Revenue that this margin is not uniform is apparently not correct. As regard the variation of the price from one state to another state, we find that the retail sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2% margin which is margin of wholesale buyer towards sale of their goods to the retailer cannot from the part of whole sale price and accordingly the same cannot be included in the assessable value. Even in terms of Rule 6(a) of erstwhile Central Excise Valuation Rules, 1975 if the goods are sold in retail and wholesale price is not known reasonable margin has to be deducted to arrive at the wholesale price for charging of excise duty. In the present case the wholesale price is clearly known i.e. the price after deduction of Sales Tax, Octroi, 7.5% margin, 2% margin and excise duty from the retail sale price, therefore the wholesale price clearly known. Hence, excise duty is chargeable on the wholesale price and not on retail price. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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