COMMISSIONER OF CENTRAL EXCISE Vs. BOC INDIA LTD.

JUDGEMENT

(1.) THE respondents in this appeal were engaged in the manufacture of Oxygen and Acetylene. During the period of dispute (September '94 to February '95), they charged price of Rs. 1247/ - per 100 cum. of liquid oxygen cleared to independent industrial consumers, while adopting the price of Rs. 650/ - per 100 cum. in respect of the goods stock -transferred to their Bangalore unit. A show -cause notice was issued to them demanding duty on the differential value. This demand was contested by the assessee. The Asst. Commissioner, upon verification of records, found that M/s. KCP Ltd. had lifted bulk consignments from the assessee @ Rs. 1061/ - per 100 cum. and, accordingly, he adopted this price as the assessable value of the goods cleared to the Bangalore unit. Accordingly, the differential duty of Rs. 2,85,453/ - was demanded by the AC. The assessee's appeal against the order of the original authority was allowed by way of remand, by the Commissioner (Appeals), who held that the assessable value was to be determined in terms of Rule 6(b)(ii) of the Central Excise Valuation Rules and not in terms of Rule 6(b)(i) of the said rules as done by the AC. The Revenue is aggrieved by the view taken by the lower appellate authority.

(2.) THE appellant is represented by ld. SDR. There is no representation for the respondents despite notice, nor any request of theirs for adjournment.

(3.) LD . SDR submitted that it was not factually correct for the learned Commissioner (Appeals) to hold that there was no sale at factory gate to whole - sale buyers. In terms of the large quantity of the goods sold to M/s. KCP Ltd. (industrial consumer), the sale of goods made to the said party was a wholesale transaction and hence the price adopted therein was to be treated as normal price under Section 4(1)(a) of the Central Excise Act. Ld. SDR relied on the Supreme Court's judgment in Ashok Leyland v. CCE Madras, .