ORDER
V.K. Ashtana, Member (T)
1. This is a Revenue appeal against Order-in-Appeal No. 30/93, dated 26-2-1993 passed by the Collector (Appeals) regarding the valuation of Ferro Silcon, manufactured and cleared by M/s. Travancore Electro Chemicals Industries Ltd. (TECIL). This was being cleared under approved Part-I price of Rs. 19,000/- for standard quality and Rs. 10,000/- for off grade. Another price list in Part-II for dealers through depots was filed and approved for Rs. 18,500/- for standard quality and Rs. 2,000/- for off grade. A SCN was issued to the respondents on the ground that Depot transfer was not sales to dealers and therefore the Part-I price list was applicable to them, demanding BED of Rs. 59,769/- and SED 5,967/-. The ld. Assistant Collector vide his Order-in-Original No. 41/92, dated 27-4-1992 dropped the proceedings. On an appeal against this by Revenue, ld. Collector (Appeals) also upheld the Order-in-original and rejected the Appeal. The appeal was initially heard by us on 16-4-1998 and orders reserved. Before mind could be applied and orders passed, ld. Advocate for respondents Shri T. Ramesh mentioned in open Court on 17-4-1998 that this issue was covered by this Tribunal’s Final Order No. 498/97, dated 11-2-1997 in their own case and submitted a copy thereof for consideration. The case was therefore listed for further hearing after notice to ld. D.R. and was finally heard on 28-4-1998. Ld. JDR Shri Rama Rao reiterated the grounds of Revenue’s appeal viz. :-
“A depot is an organ of the assessee and is not a buyer to qualify as a class and that the transfer to a depot is not a sale and Part-II price should not apply to it”. Dealing with this Tribunal’s decision cited supra, ld. JDR distinguished it from the facts of this case on the ground that in that cited decision Part-I PL was for Industrial consumers while in this case it is for all buyers at factory gate other than dealers. He further argued that (a) a depot is not a dealer; (b) that it is not on record that sales from depots is only to dealers; (c) that when there was no sale to depots, how could Part-II PL apply (it applied only for contracts); and (d) the exact buyer is not known and therefore only the Part-I price at factory gate should apply. He cited 1997 (20) RLT 658 CEGAT.
2. Heard ld. Advocate Shri T. Ramesh. He argued that this case was fully covered by the decision of this Tribunal in their own case cited supra; that the grounds of appeal are identical in both cases; that in both cases there are 2 prices for two different class of buyers; and that all sales from depots were only to dealers and not one sale was to other than dealers. He also submitted that the impugned order had therefore correctly upheld the Order-in-Original.
3. We have carefully considered the arguments on both sides and records of the case. In their decision vide Final Order No. 498/97, dated 17-2-1997 the Hon’ble Tribunal at Madras had held that:
“Following grounds of appeal have been urged,
(1) It has been held by various decisions of the Hon’ble Supreme Court and Hon’ble Tribunal that factory gate price should be the basis of valuation for depot transfers. Citations of three such orders are given below as examples:
(i) Indian Oxygen Ltd. v. Collector of Central Excise 1988 (36) E.L.T. 723 (S.C.);
(ii) Shree Durga Glass (P) Ltd. and Ors. v. Collector of Central Excise, Bhubaneswar and Ors. 1988 (35) E.L.T. 392 (Tribunal);
(iii) Wood Craft Products Ltd. v. Collector of Central Excise, Shillong 1988 (35) E.L.T. 495 (Tribunal).
(2) Depot is an organ of the assessee and is not a buyer to qualify as a class, as done by Collector of Central Excise (Appeals) in his order. Transfer to depot is not sale and Part-II price should not apply to it.
In view of the foregoings it is submitted that the approved factory gate sale price is the price applicable for depot transfers and the Hon’ble Tribunal may be pleased to set aside the Order-in-Appeal allowing valuation of depot transfers on the basis of approved price at factory gate i.e. Rs. 8,450/- per MT.”
“The learned JDR, Shri S. Murugandy for the department while adopting the grounds of appeal fairly concedes that the dealers and the industrial consumers constitute different classes of buyers. He, however, has pleaded that since some of the sales were made ex-depot, the higher prices should be adopted in respect of the clearance made to the depot from the factory, as at the time of clearance of the goods it would not be known into which channel the goods would be ultimately sold (i.e.) whether to the industrial consumers or the dealers.
The ld. Advocate Shri T. Ramesh for the respondent has pleaded that the respondents were affecting sales to the industrial consumers only from the factory gate while to the dealers they were affecting sales both from the factory gate as well as from the Depot. He has pleaded that there is no single case of sale of goods to the industrial consumers from the Depot. This position was not controverted by the ld. JDR.
We have considered the pleas made by both the sides. We observe that the grounds urged before us that since the price is available for sale at the factory gate that should form the basis for assessment. In the grounds of appeal, the ground taken is that transfer to Depot is not sale and Part-II price should not apply to it. Clarifying the position, the ld. JDR points out that the appellants had filed Part-I price list price the industrial consumers and Part-II price for the dealers. Be that as it may, the fact remains that there are two classes of buyers. There is no dispute that Part-I price which is higher (i.e.) Rs. 8,450/- was being charged to the industrial consumers which in terms of 4(1)(a)(ii) is one of the category of class of buyers for whom a different price under law can be accepted. This price therefore has to be treated as Part-II price. The authorities have with eyes open approved this price list as a Part-I price which is intended for sales in terms of Section 4(1) a main definition. This price of Rs. 8,100/- is for the dealers and the sales were made both from the factory gate as well as from the Depot. The position regarding sales as pleaded is also not controverted by the ld. JDR. What therefore emerges is that we have a Part-I price list for the dealers who were getting their goods either ex-factory or from the Depot and there is a another Part-II price for the industrial consumers who were getting the goods at the factory gate at the price of Rs. 8,450/-. In above background in law, therefore these two prices for respective buyers are acceptable. This position is now well settled by the various judgments of the Hon’ble Supreme Court. There is no averment from the Revenue that the price to dealers was manipulated. In the above view of the matter, therefore, we hold that there is no infirmity in the order of the ld. lower authority and we dismiss the appeal”.
4. On a plain reading of this decision we find that the facts of this case are identical to that in the decision reproduced supra because :-
(a) the grounds of appeal are exactly the same;
(b) in both cases two class of buyers are recognised viz. dealers and other than dealers (name of ‘Industrial Consumers’ given being irrelevant);
(c) depot sales were only to dealers;
(d) Part-I PL was for sales to non-dealers at factory gate; and
(e) Part-II PL was for removals to depots, which sold only to dealers.
5. Ld. JDR has contested that facts are different only on the ground that Part-I PL in the cited case is for ‘Industrial Consumers’. This terminology is irrevelant. What is relevant is that two distinct class of buyers exist, dealers and others, in both cases. Ld. JDR has also argued that when goods are removed to depots, it is neither a sale, nor is it known to whom it will be sold. As against this ld. Advocate has averred that sales from depots is only to dealers. As Revenue has not led any evidence at any stage to the contrary, therefore we have no reason not to accept this averred marketing pattern. The rest of the arguments of ld. JDR have been squarely dealt with in the earlier decision of this Tribunal cited supra. Therefore, we find that we are to apply, with respect, the ratio of the Tribunal’s decision in Final Order No. 498/97, dated 17-2-1997 in this case, being identical on all fours. In this view of the matter, we find that there is no merit in the Revenue appeal and the same is dismissed.