TaxTMI 
TaxTMI 
1999 (10) TMI 140
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....f all the appeals by this common order. 2. Appellant in Appeal No. E/628/98-A is a Company registered under the Companies Act as M/s.Century Laminating Co. Ltd. Its factory is located in Hapur, U.P. This factory manufactures decorative laminates. The period with which we are concerned in these appeals is from 1-2-1991 to 30-9-1995. Goods manufactured in the factory were sold to wholesale dealers at the factory gate as also through various depots situated in various parts of the country. 25% of the products are sold to wholesale dealers at the factory gate. In respect of these sales to 116 wholesale dealers Price Lists in Part I were submitted to the Central Excise authorities. Those lists were approved by them. Sales were effected a....
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....dated 9-1-1998 the amounts demanded under the show cause notice was confirmed. Penalties were also imposed on the officers of the company. Operative portion of the order is as follows : "(1) I confirm and demand an amount of Rs. 8,16,85,476.22 (BED Rs. 7,80,65,802.24 + SED Rs. 36,18,673.98) from M/s. Century Laminating Co. Ltd., Hapur under Proviso to Section 11A(1) of Central Excise Rules, 1944 read with Rule 9(2) of the Central Excise Rules, 1944. Appropriate interest at the prescribed rate shall also be payable in terms of the provisions of Section 11AB of the Cenral Excise Act, 1944. (2) I impose a penalty of Rs. 2,00,00,000/-(Rupees two crores only) on the said M/s. Century Laminating Co. Ltd., Hapur under Rule 173Q of the Centra....
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....ne lakh only) (6) I also impose a personal penalty of Rs. 25,00,000/- (Rupees twenty five lakhs only) on Shri Govind Mundra, Commission Agent of said M/s. CLCL under Rule 209A of the Central Excise Rules, 1944. " Aggrieved by this order these appeals have been filed. 3. As stated earlier M/s. Century Laminating Co. Ltd. (for short, CLCL) is manufacturing decorative laminates. The goods so manufactured are excisable goods. Value of such goods must be determined in terms of Section 4 of the Act. Section 4(1) provides that where duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section, be deemed to be the normal price thereof, th....
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....urpose of assessment of duty. In the instant case, nearly 25% of the produce are sold to 116 wholesale dealers at the factory gate. Those sales were on the basis of approved price lists in Part I. None of these wholesale purchasers is alleged to be related to the manufacturer. No iota of evidence is forthcoming to show that anything other than the price shown in the price lists flowed from the said purchasers to the manufacturer as consideration for the sale. 4. In the course of investigation, two of the wholesale dealers who purchased the goods from CLCL were questioned under Section 14 of the Central Excise Act. Evidence so recorded did not go to show that anything other than the price mentioned in Part I of the Price List was pai....
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....s it is legal and proper to ignore the ex-factory price and to assess duty on the basis of dealers price. This is a clear misunderstanding of the provisions contained in the Act and the decisions of the Supreme Court. In Baroda Electric Meters v. C.C.E. - 1997 (94) E.L.T. 13, their Lordships observed that duty of excise is to tax on the manufacturer and not to tax on the profits made by a dealer. 6. In the course of investigation, the authorities relied on comparative price of decorative laminates of various manufacturers of similar qualities prevailing at Bangalore. It is seen from the Annexure E to the show cause notice that various items of decorative laminates has been sold by the appellant at Bangalore at prices similar to thos....
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....ctory. But the invoice was for depot price. This explanation appears to be acceptable. These sales were not in respect of ex-factory sales. These were sales effected at the depot. The dealer who got the goods as per these two slips was not a wholesale dealer who purchased the goods from factory. So, despatch of the goods covered by the two slips recovered from the Delhi Depot cannot be the legal basis for overthrowing the ex-factory price . 8. In the course of investigation in this case authorities below recovered a diary from the Depot of CLCL at Calcutta. That related to certain transactions which took place in October-November 1990. They are not of much assistance in this case, for they are related to period anterior to the perio....