TMI Blog2019 (4) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... d not have any interest in the business of its buyers. Hence, there was one way interest .Whereas the pre-requisite is that of mutual interest, which has not been satisfied. Therefore, it cannot be said that the Appellant and its buyers were related persons and that the sale of the goods were to or through related persons, as envisaged under Section 4(4)(c) of the Central Excise Act - The contrary finding of the Commissioner is thus not sustainable. Valuation - goods sold from depots/selling agent s places - whether the factory gate sale price or the depot sale price is to be considered or not? - HELD THAT:- In the impugned order of the Commissioner, it is acknowledged that the Appellant Company sold small quantity of their goods at the factory gate and that such goods were cleared ex-factory to the independent buyers . It is, therefore, established that the Appellant had factory gate sales, though of small quantity, which were cleared to independent buyers - These are all post manufacturing expenses and there is no evidence that any part of the said expenses were incurred within the factory premises prior to clearance of the goods from the factory gate. Hence, these charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the appellant under Rule 173Q of the said Rules is legally valid and tenable? 2. The Ld. Senior Advocate filed a compilation of the case laws, written notes of arguments and list of dates and argued the issue one by one. 3. Regarding the first issue, it is the submission of the Ld. Senior Advocate that it has been conclusively established that at all materials times the subject goods which were sold on ex-factory basis by the appellant were to independent wholesale buyers at arms length and on principal to principal basis and the allegations/perfunctory finding that they were sold to firms having related person within the meaning of the Act has no merit or substance whatsoever. It is also his submission that there can be no dispute whatsoever that the appellant and the parties to whom the said goods were sold at the factory gate on wholesale basis during the said period cannot be termed as a related person within meaning of Section 4 of the Act. In support of his submissions, he relied upon various decisions which are as under: (a) Union of India Vs. Atic Industries Limited, 1984 (17) ELT 323 (SC) (b) The Commissioner of C. Ex. Vs. Goodyear South Asia Tyre P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds. 8. We find that the Tribunal vide the Order No. SP-125/A154/CAL/1991 dated 20/02/1991 in Appeal no. E/565/90 (CAL) allowed the appeal on the ground of violation of principles of Natural Justice. We observe that in the de novo proceeding, the Appellant made submissions based on the preliminary reply filed by it under letter dated April 22, 1987, while continuing with its demand for supplying of certain relied upon documents, which allegedly had not been provided, but this contention was disputed by the Department. Pursuant to the said hearing , the impugned de novo adjudication order dated November 9, 2006 was passed by the Commissioner. 9. The first issue that is to be determined is, whether the goods, sold from the factory gate of the Appellant, during the period from January, 1981 to February, 1984, were sold to or through the persons who were related persons within the meaning of Section 4(4)(c) of the provisions of the Central Excise Act then in force. 10. We find that the issue is no more res-integra as this stands settled by the decision of Hon ble Supreme Court in, inter alia, Union of India Vs. Atic Industries Limited [1984 (17) ELT 323 (SC)]. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness of the buyers (Goodyear Indian Limited and CEAT Limited). Given this, the requirement of mutually of interest which is a pre-requisite under Section 4(4)(c) of the Act does not get satisfied. The matter is squarely covered by the decisions of this Court in the case of Atic Industries Ltd. 12. We observe that in the instant case, there is no evidence disclosed in either the show cause notice or the impugned order which establishes that the requirement as stated above, laid down by Hon ble Supreme Court that both the Appellant and the parties to whom it sold the goods, had interest in the business of each other. The evidence on record discloses that the Appellant did not have any interest in the business of its buyers. Hence, there was one way interest .Whereas the pre-requisite is that of mutual interest, which has not been satisfied. Therefore, it cannot be said that the Appellant and its buyers were related persons and that the sale of the goods were to or through related persons, as envisaged under Section 4(4)(c) of the Central Excise Act. The contrary finding of the Commissioner is thus not sustainable. 13. The next issue to be decided is whether there was fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing the decision of the Supreme Court in Indian Oxygen Ltd. Vs. CCE (Supra). 16. On behalf of the Department the learned DR has relied upon the decisions of the Tribunal in Collector of Central Excise Vs. Taparia Tools Ltd., 2001(131)ELT 306(Tri-LB ) and Allied Resins Chemicals Ltd. Vs. Commissioner of C. Ex. 2008(226)ELT 126 (TriKol) to distinguish the decision of Hon ble Supreme Court in Indian Oxygen Ltd. Vs. Collector of Central Excise (supra). It is seen that the decision of the Supreme Court in Indian Oxygen Ltd. Vs. CCE (supra) and the ratio laid down therein that where there are sales from factory gate and from the depot, it is the factory gate price that should be applied to determine the value both of goods sold from the factory gate and goods transferred to the depot for sale therefrom was reaffirmed by the Larger Bench decision of Hon ble Supreme Court in Government of India Vs. Madras Rubber Factory Ltd., 1995(77) ELT 433(SC) (paras 18 21). In view of this, the distinction sought to be made by the Larger Bench of the Tribunal in Taparia Tools Ltd. s case (supra) which was followed in Allied Resins Chemicals Ltd. (supra) can no longer be applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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