ORDER
Sh. G.A. BRAHMA DEVA, MEMBER (J)
1. These are two appeals. Since the issue involved is common in these appeals, they are taken together and are being disposed of by the common order. Stay application was also filed in Appeal No E/32/2000 for the waiver of predeposit of duty in terms of section 35F of the Act. Pre-deposit is dispensed with and appeal was taken for regular hearing.
2. Arguing for the appellants, Sh. Gopalakrishnan, Learned Consultant, submitted that the issue relates to valuation. Duty was demanded for the difference in price of the goods at the factory gate and the Depots. He submitted that the period relates to 1.3.94 to 31.3.95 and 1.3.95 to 31.3.96 respectively and since the factory gate price is ascertainable, that should be taken as basis in determining the assessable value. The demand is without consideration of the fact that the Depots price was inclusive of transportation and other charges incured after removal of goods from the factory and this charges could be excluded from the Depots price to arrive at the assessable value as per sub section 2 of the section 4 of the Central Excise Act that exists prior to the amendment in Finance Act 1996. He submitted that section 4 was amended on 28.9.96 and amended provision is not applicable to the period prior to the amendment. The amendment is prospective and not retrospective. It was also contended that 90% of their sales during the relevant period is at factory gate and hence the same should be treated as assessable value.
3. Smt. Radha Arun, SDR appearing for the Revenue submitted that most of the sales were at Depot and from the invoices raised from their depots it is seen that some products were sold at higher price.
4. We have carefully considered the matter. We find that the period of dispute is 1.3.94 to 31.3.95 and 1.3.95 to 31.3.96 respectively by the respective impugned order. Section 4 was amended on 28.9.96. Accordingly, amended provision is not applicable for period in question a sit was rightly pointed out on behalf of the appellants. The position for the period of dispute in these two appeals has already been settled by series of decisions following ruling given by the Supreme Court in the case of M/s Indian Oxygen Ltd., Vs Collector of Central Excise reported in 1988 (36) ELT 723. In that case, it was held that since ex-factory price is ascertainable, such ex-factory price shall be the basis for determination of value under section 4 of the Central Excise & Salt Act, 1944 and the question of transportation charges become irrelevant. Percentage of sales is also irrelevant, as well as ex-factory price is ascertainable that should be taken as basis in determining the assessable value. Following the same, we accept the contention of the party and accordingly these two appeals are allowed on the limited issue.
5. Ordered accordingly.
(Pronounced & dictated in the open Court)
