TMI Blog2004 (12) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... wed. - 2288-2289 of 1999 - - - Dated:- 1-12-2004 - S.N. Variava, Dr. A.R. Lakshmanan and S.H. Kapadia, JJ. [Order]. - These Appeals are filed against the Judgments of the Customs, Excise and Gold (Control) Appellate Tribunal (in short "CEGAT"), Calcutta dated 22nd December, 1998 and 19th May, 1998. 2.Briefly stated the facts are as follows :- The Respondents (herein) manufactured Electric Welding Electrodes. They cleared the goods under Rule 173C(11) of the Central Excise Rules, 1944. It is not disputed that Rule 173C(11) would apply to the Respondents' case. The said Rule, as it then stood, reads as follows :- "Rule 173C - Assessee to file price list of goods assessable ad valorem. - (1) Every assessee who produces, manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 3.Two show cause notices were issued on 30th October, 1993 and 11th December, 1992 in Civil Appeal Nos. 2288-2289 of 1999 and one show cause notice was issued on 22/23rd March, 1991 in Civil Appeal Nos. 3635-3636 of 1999 specifying that even though price lists had been provisionally approved, the wholesale price at the factory gate existed and therefore that would be the assessable value for the goods. 4.The Respondents filed a reply wherein they claimed that they were an SSI unit and that their customers were mostly from Calcutta and other places within the State of West Bengal. They stated that a very negligible quantity was sold at factory gate and for trading purposes they were running a Sales Depot in Calcutta. It was claimed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Thus, if it is found that there is a normal price at which goods are sold at the factory gate then even though earlier the assessee was permitted to clear under Rule 173C(11) the re-assessment would be on the basis of the normal price as determined under Section 4. 7.We are unable to accept the submission that such an interpretation would negate Rule 173C(11). A Rule cannot override or be contrary to a Section. Under Section 4 the normal price has to be the value at which the goods are ordinarily sold. Thus clearly Rule 173C(11) only provides for cases where the normal price cannot be ascertained. In those cases goods are allowed to be removed on basis of price shown on the challan or advise note. But the framers of the Rule were caref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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