TMI Blog1990 (1) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were sold by the appellant to its distributors and the price at which the said goods were sold by the distributors to independent buyers, calculated as aforestated, must be held to be excess levy. The order of the Tribunal is set aside and it is held that the assessee is entitled to refund where excise duty has been assessed and collected from the assessee at a higher rate on the footing that the wholesale distributors of the assessee were persons related to it, that is, in respect of the .other categories of sales, namely, retail sales, sales to dealers, sales to State Transport Undertakings and export clearances. - 1430-36 (NM) of 1987 - - - Dated:- 30-1-1990 - M.H. Kania and Kuldip Singh, JJ. [Judgment per : Kania, J.]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmittedly not related persons regarding the appellant. These price lists were duly approved. It was regarding the price lists filed under Part IV that the Assistant Collector on the basis of the aforesaid view directed the appellant to file revised price lists showing a discount of 12˝% from the price at which the goods supplied by the appellant were sold by its distributors to independent buyers. The appellant complied with this direction under protest taking up the contention that the distributors were also a class of independent buyers. This claim was rejected by the Assistant Collector, who took the view that the distributors were related persons and hence the prices charged by these distributors to their purchasers should be taken as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed the appeal of the appellant. The present appeals are directed against this decision of the Tribunal. 3. It was submitted by Mr. Divan, learned counsel for the appellant, that the decision of the Tribunal was erroneous and liable to be set aside as, for purposes of levy of excise duty on the sales in question only one price can be treated as the normal price and, as the distributors were held not to be related persons, it was the wholesale price at which the goods were sold by the appellant to the distributors which must be held to be the normal price. It was pointed out by him that all the circumstances show that the payment of excise duty was made under protest and that the returns were originally filed only on the basis of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section be deemed to be the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale." 5. It may be noted that in the present case there was no contention that there was any consideration for the sale other than the price. 6. In India Cements Ltd. v. Collector of Central Excise - 1989 (41) E.L.T. 358 (S.C.) = 1989 (2) S.C.C. 676, a Division Bench of this Court has taken the view that no particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad become final, was rejected. 8. In our opinion, the submission on behalf of the appellant is well-founded. In view of the fact that the distributors of the appellant were finally held not to be related persons regarding the appellant in cases where excise duty has been levied on the footing that the distributors of the appellant were related persons and hence, the price at which the goods were sold to them could not be regarded as the normal price and the excise duty collected in respect of the difference between the price at which the goods were sold by the appellant to its distributors and the price at which the said goods were sold by the distributors to independent buyers, calculated as aforestated, must be held to be excess levy. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent classes of buyers are specifically recognised under proviso (i) of Section 4(1) of the Central Excises Act, therefore, merely because the product is sold at a lower price to the Govt. and its department that does not enable the MRF to contend that the difference in price with reference to an ordinary dealer and the Government is a discount to the Government. The difference in price is not a discount but constitutes a normal price for the Government as a class of buyers and no deduction on this Head is admissible. It was, in these facts and circumstances, that the aforesaid conclusion was arrived at and it has no application to the case before us because it has not been shown to us that a distinct or different price list was filed regar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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