ORDER
U.L. Bhat, J. (President)
1. Collector of Central Excise, Bombay has filed this appeal against the Order-in-Appeal dated 23-3-1987 passed by the Collector of Central Excise (Appeals), Bombay confirming the order dated 30-8-1984 passed by the Assistant Collector of Central Excise, Bombay.
2. Respondent was engaged in the manufacture of Gramophone Records on its own for sale to wholesalers and also for supply to M/s. Echo Recording Company and M/s. Saraswati Stores. For sale to respondent’s own wholesalers, respondent was procuring master tapes and pressing records. As per contract entered into with the two buyers, M/s. Echo Recording Company and M/s. Saraswati Stores, respondent was receiving master tapes from the buyers free of charge and using the same in pressing records. These records were being sold to two buyers on contract. Respondent had filed price lists declaring the prices charged to the two buyers on contract and on approval of the same, was paying appropriate duty on such assessable value. In respect of the period from 16-7-1982 to 31-3-1984, fourteen show cause notices were issued alleging that the manufacturers of the records covered by the two contracts were really the two buyers and not the respondent who was only in the nature of hired labour and, therefore, liability to pay duty was on the two buyers and assessable value should be based on the prices charged by the two buyers to their wholesalers. The show cause notices alleged that though called upon to furnish to the Department the prices charged by the two buyers to their wholesalers, respondent did not cooperate. It was found that the prices at which the respondent was selling the records pressed by them on their own and the ruling prices in the market for records manufactured by other manufacturers were same and the same prices would be charged by the two buyers to their wholesalers. On this basis the show cause notices determined the value of the records allegedly manufactured by the two buyers and sold to their wholesalers. Demand was proposed on this basis. The respondent resisted the material allegations in the show cause notice. However, the Assistant Collector held that the two buyers cannot be regarded as manufacturers and, therefore, the two buyers’ prices to their wholesalers cannot be the basis for determination of assessable value of the records manufactured by the respondent. He dropped the notices and his order has been confirmed by the Collector (Appeals).
3. The orders to the extent they held that the two buyers cannot be regarded as manufacturer and the buyers’ prices to their wholesalers cannot be the basis for determination of assessable value are not challenged by the appellant. The only contention put forward by the appellant is that the master tape used by the respondent to manufacture records on contract with the two buyers was supplied free of cost by the buyers and but for such supply respondent would have to procure master tapes at a price and such price would have been taken into consideration in fixing the price under the contract and such price would have been much higher than the price shown in the contract and, therefore, differential duty should be paid on the differential value. Learned Counsel for the respondent stated that this was not the basis of the show cause notices and the notices proceeded only on the basis that the respondent was the hired labourer of the two buyers and the buyers are the manufacturers and they have to pay duty on the assessable value based on their prices to their wholesalers. It is also pointed out that the notices did not proceed on the basis that there was suppression of value to any extent on account of not adding the proportionate cost of the master tape to the assessable value. The appeal memorandum also does not state that this case had been put forward in the show cause notices and the lower authorities were in error in considering such case put forward in the show cause notices. As it generally transpires in departmental appeals, copies of the show cause notices are not produced by the department. The respondent is also not in a position to show us a copy of the show cause notice. In this view, we find that the appellant has failed to show that the case now propounded was propounded in the show cause notices in which case alone the impugned orders could be found fault with for not taking into account such a case. On this short ground, we dismiss the appeal.