Hon'ble Judges/Coram:
A.K. Sikri and Rohinton Fali Nariman

ORDER

1. The Appellant-Assessee has a factory at Bamboo Flat, South Andamans and its head office is in Calcutta. The Assessee is manufacturing ply-woods and related products in its factory at South Andamans. Some of these products are sold from the factory premises in South Andamans only to certain buyers. However, major portion of the products manufactured there are sold to other dealers from their numerous depots which are situated at different places in the country. The Assessee had filed its declaration Under [Rule] 173C of the Central Excise Rules showing the price of the goods at which they were sold ex-factory and delivery basis. The Respondent-Revenue found that there was a lot of price difference between the goods sold at ex-factory and delivery basis in comparison with the goods which were sold to the buyers from their depots. Investigation was carried out. Statements of two buyers, viz., Sri Sreeram Tekriwal, partner of M/s. Sreeram Santosh Kumar, Calcutta and Sri Mahendra Laxmidas Panchmati, partner of M/s. Laxmidas Brothers, Bombay were recorded and on that basis, show cause notice dated 3-5-1995 was served upon the Assessee stating as to why the price at which the goods were sold to these customers from the depots may not be the basis for determining the value for the purpose of excise duty. The Respondent contested the aforesaid show cause notice by furnishing its reply wherein various defences/justifications were given. Among others, it was stated that on the same ground, proceedings were taken earlier which resulted in favour of the Assessee by the decision of the Tribunal and that decision of the Tribunal was accepted as no further appeal was filed by the Department there against. The Assessee also questioned the correctness of the statements of the aforesaid two witnesses and demanded right to cross-examine them. The matter was heard. Thereafter, the Adjudicating Authority passed the order confirming the demand in the show cause notice. The Adjudicating Authority also took into consideration the price list of the Assessee maintained at its depots which was treated as the price for the purposes of levying the excise duty. The Appellant filed appeal against the aforesaid order of the Adjudicating Authority. However, this appeal is also been dismissed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'Tribunal')-The perusal of the order of the Tribunal would demonstrate that it had taken note of the plea specifically raised by the Assessee that the normal ex-factory sale price should be treated as normal price by virtue of the provisions of Section 4 of the Central Excise Act and to which only transportation cost could be added. Number of judgments were cited in support of this proposition which are taken note of by the Tribunal. However, on two grounds, the Tribunal rejected the appeal of the Assessee. These are:-

(1) The ex-factory sale was hardly 2 percent and most of the sales, i.e., to the extent of 98 per cent, were from the depots of the Assessee which are situated at other places and not at the place of factory, i.e., South Andamans.

(2) Though the price at which sales were made ex-factory at South Andamans remains the same over a period of time as far as sales to depots are concerned, the ........