COMMISSIONER OF C.EX., Vs. ATLANTIC FOODS

JUDGEMENT

(1.) This is a Revenue appeal against the Order -in -Appeal No.375/96 (CBE) dated 30.5.96 challenging the Ld. Commissioner's finding that the Asst. Commissioner in Order -in -Original was not justified in denying different prices adopted by the assessee for the purpose of assessable value.

(2.) Ld. Commissioner has noted that it is clear that different prices have been adopted due to market conditions and the lower price in Kerala was merely on account of the fact that they had entered into the Kerala market later and there was stiff competition. While coming to this conclusion the Ld.Commissioner has noted the Tribunal judgement rendered in GORA MAL HARI RAM LTD. Vs CCE Delhi -1994 (69) ELT 269 on the same proposition and SRB judgement rendered in P.C.M.I. Ltd Vs CCE Madras - 1996 (63) ECR 298 wherein it was held that sale of goods for different prices at different places to the buyers of Punjab region could be considered to be sale to different classes of buyers within the meaning of Section 4 of Central Excise Act. Revenue is not satisfied with this order and they contend that it is not legal and proper which requires to be reversed and OIO be confirmed. They rely on Section 4 (4) (e) which deals with the definition of 'wholesale trade' which means sales to dealers, industrial consumers, government, local authorities and other buyers, who or which purchase their requirements otherwise than in retail. They contend that sales to dealers are accepted as sales made in wholesale trade and as per proviso (i) to Section 4(1) and (a), dealers constitute a separate class of buyers. They also rely on the judgement of SHAKTHI INDUSTRIAL WIRES Vs CCE reported in 1990 (49) ELT 554 (T) wherein it has been held that contracted prices, if they are dealers, cannot be treated as separate class of buyers different from other dealers. Further reference is made to the judgement of SAIL Vs CCE - 1991 (50) ELT 540 (T) wherein the Tribunal held that when different prices are charged to different customers, highest price charged from the nearest customer is to be treated as the assessable value.

(3.) Ld.DR Shri S.Kannan reiterates the departmental contention and relies on these judgements for seeking reversal of the Commissioner (Appeals) order.