TMI Blog2023 (10) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The procedure for the discounts being given at depots remained same as per the earlier period. The earlier Final Order of this Bench dated 09.05.2022 [ 2022 (5) TMI 1244 - CESTAT HYDERABAD ] has already gone into considerable depth and has allowed the Appeal filed by the present Appellant and dismissed the Appeal filed by the Revenue. There is nothing on record to show that this Final Order of this Bench was taken up further by the Revenue before the Hon ble Supreme Court nor is there anything to suggest that this Order has been stayed by the Apex Court - thus, conclusion arrived at by this Bench vide Final Order dated 09.05.2022 is squarely applicable. Appeal allowed. - HON'BLE MR. R. MURALIDHAR ( JUDICIAL ) And HON'BLE MR. A. K. JYOTISHI, MEMBER ( TECHNICAL ) Ms L. Maithili , Advocate for the Appellant Shri A. V. L. N. Chary , AR for the Respondent ORDER [ Order per : R. MURALIDHAR ] The Appellant has cleared their various products like decorative laminates, industrial laminates, polyesters, phenolic resins, mouldings during April 1994 to September 1996 to their depots and also sold the same to independent third parties during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his findings that there existed factory gate sales which can be applied to the depot sales. The lower authority did not analyze and determine how the factory gate sales are applicable to the depot sales. 3. This shows that even after finding that the Appellant had produced all the records to show that genuine factory gate sale price exists, the Commissioner (Appeals) has gone ahead and remanded the matter to the Adjudicating Authority. 4. Learned Counsel further submits that the issue of valuation in the present case is no more res integra. Before this Bench, the Appellant s earlier proceedings had come up for Hearing on 07.03.2022. In that case, the period in question was April 1991 to September 1995, wherein, the SCN was issued by invoking extended period provisions. The issue involved in that proceedings are identical and factually there is no change in the practice adopted by the Appellant during that period and the period under question in the present Appeal. The present Appeal is on account of the subsequent periodical notice issued by the Revenue for the period April 1994 to September 1996. She submits that this Bench had gone into all the details for the period Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f) if the goods are sold to different classes of buyers at different prices, then each such price shall be the value for sales to such class of buyers; for instance, if there are industrial consumers, OE manufacturers, wholesalers, etc., each of which can be a class of buyers; and g) for the purpose of this section, any sale other than retail is considered wholesale trade. 10. Thus, a shrewd assessee can sell a small quantity of the goods at a relatively lower price to independent buyers at the factory gate fulfilling all the conditions required under section 4(1)(a) and the rest through other methods. Once the 4(1)(a) price is available, other sale prices do not matter. According to the Revenue the Commissioner has wrongly recorded that there is a factory gate price, while according to the assessee, there was a price under section 4(1)(a). We now proceed to examine the grounds on which the Revenue asserts that there was no genuine factory gate price as per section 4(1) (a). 11. According to the Revenue, as per the statements of Shri P Anand Sagar, Depot-in-charge, AP Sales, Shri K Prabhakar, Manager-Decoratives marketing and Shri S. Sen Gupta, Company Secre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PSUs 8 2 2 1 2 Total buyers other than employees 91 73 75 85 61 15. Therefore, the entire argument of the Revenue in its appeal that the goods were sold from the factory gate to only four categories of persons viz., Public Sector Undertakings, M/s. Jaipur and Bikaner Trading Co., individuals and company employees is not borne out by the ledgers produced before us by the assessee. The evidence on the basis of which the Revenue relies are the statements of the employees said to have been recorded during investigation. When details of actual sales in the form of ledgers are presented before us by the assessee, even if statements of employees contrary to the available evidence are recorded by the officers, it cannot change the facts. No documents have been produced before us by the Revenue to substantiate their claim that goods were not sold to anyone except individuals, company employees, PSUs and Jaipur and Bikaner Trading Co. No evidence has been adduced by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained. Consequently, the imposition of penalty also cannot be sustained. 5. She submits that while the earlier proceedings were initiated for the extended period and this Bench had also given their findings on limitation holding that extended period demand is not sustainable, in the present case this is not relevant as the demand has been issued only for the normal period. 6. Accordingly, she prays that the present Appeal may be allowed. 7. The learned AR does not dispute that the present litigation is on account of periodical notice issued to the Appellant for the period April 1994 to September 1996 and the same issue in respect of earlier period i.e., April 1991 to September 1995, stands decided in favour of the Appellant vide Final Order No. 30059-30060/2022 dated 09.05.2022. However, he submits that in that case, the issue involved was that of only one product i.e., decorative laminates, whereas, in the present case other four products viz., industrial laminates, polyesters, phenolic resins and mouldings are also involved. Therefore, he submits that earlier decision of this Bench may not be applicable for these products. 8. In the rejoinder, the learned Counsel s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
