TaxTMI 
TaxTMI 
2009 (7) TMI 265
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.... 3. The relevant facts, in brief, are that the respondent are clearing excisable goods from the factory to the depots and they are also having sale at the factory gate. The respondent paid the duty on factory gate sales as per the transaction value and there is no dispute about the same. In respect of transfers made to the depots, they initially paid duty adopting the price prevailing at factory gate. However, subsequently they have claimed that the sale prices of such goods at the depot at the date of clearances were lower and preferred refund claims. The refund claims have been rejected by the original authority. However, Commissioner (Appeals) allowed the appeals of the respondents and hence the Department is in appeals. 4.1 Learned....
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....s that whenever there are sales at factory gate as well as transfer to depots on the same day, the sales at factory gate is not relevant for the purpose of determining the assessable value in respect of goods transferred to the depot. In terms of Rule 7 of the Valuation Rules, the value of goods on transfer to depots have to be based on sale price on the relevant day which is on the nearest date from the depot. He also relies on the instructions of the Board contained in Circular No. 354/81/2000-TRU, dated 30-6-2000, particularly in para 19 which reads as follows:- "19. If the goods are not sold at the factory gate or at the warehouse but they are transferred by the assessee to his depots or consignment agents or any other place fo....
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....decisions relied upon by the learned DR are not relevant to the facts of the present case as in those cases the clearances were on sale and that the variation in prices subsequent to sale has been held to be irrelevant for the duty determined. In respect of their submissions that the respondents have not challenged the assessment, he submits that this is an issue taken afresh for the first time before the Tribunal and this was not an issue before the original authority. 6. We have carefully considered the submissions from both sides. The submission of the learned Advocate that when there are clearances on sale at factory gate and clearances by way of transfer to depot, both should be treated independently appears to be incorrect. His sub....
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....uced before the original authority or the Commissioner (Appeals) about the lower prevailing price at the depot of the assessee at the time of transfer to the depot. The original authority has clearly held as follows:- "The noticee contends that the goods cleared from factory gate to the depots on payment of duty on the transaction value prevalent on the date of clearance of such goods has ultimately sold at lower prices whereas duty was paid at factory gate at higher prices and thus claimed the refund of differential duty. It is seen that the goods were cleared to the depots on the prices prevalent on that date. On such dates, the noticee has also sold yarn to the independent buyers at the prices at which the goods were sold/transferred ....