ORDER

1. These appeals are filed against the judgments of the Customs, Excise and Gold (Control) Appellate Tribunal (in short "CEGAT"), Calcutta dated 22-12-1998 and 19-5-1998.

2. Briefly stated, the facts are as follows:

The respondents (herein) manufactured electric welding electrodes. They cleared the goods under Rule 173-C(11) of the Central Excise Rules, 1944. It is not disputed that Rule 173-C (11) would apply to the respondents case. The said rule, as it then stood, read as follows:

"173-C. Assessee to file price list of goods assessable ad valorem.-(1) Every assessee who produces, or manufactures or warehouses goods which are chargeable with duty at a rate dependent on the value of the goods, shall file with the proper officer a price list, in such form and in such manner and at such intervals as the Collector may require, showing the price of each of such goods and the trade discount, if any, a\lowed in respect thereof to the buyers along with such other particulars as the Central Board of Excise and Customs or the Collector may specify.

(11) Notwithstanding the provisions of sub-rules (1) to (6), the Collector may, having regard to the nature of goods manufactured or the frequent flucmations of market price of such goods, allow an assessee or a class of assessees to declare the price of goods transacted by the said assessee or assessees for the particular wholesale consignment on the gate pass or accompanying challan or advice note and to determine the duty payable on such goods intended to be removed 00 the basis of the said declared price:

Provided that where the price thus declared 00 the gate pass or accompanying challan or advice note does not represent the value as determined under Section 4 of the Act, the proper office may, after such further inquiry, as he may consider necessary, reassess the duty due and thereupon the assessee shall pay the deficiency, if any, by a debit in his account-current or in case of excess payment take credit of the amount paid in excess in the manner prescribed in sub-rule (2) of Rule 173-I."

3. Two show-cause notices were issued on 30-10-1993 and 11-12-1992 in Civil Appeals Nos. 2288-89 of 1999 and one show-cause notice was issued on 22/23-3-1991 in Civil Appeals Nos. 3635-36 of 1999 specifying that even though price lists had been provisionally approved, the wholesale price at the e factory gate existed and therefore that would he the assessable value for the goods.

4. The respondents filed a reply wherein they claimed that they were an SSI unit and that their customers were mostly from Calcutta and other places within the State of West Bengal. They stated that a very negligible quantity was sold at the factory gate and for trading purposes they were running a sales depot in Calcutta. It was claimed that the goods were cleared from the factory to the depot at provisional price shown in the gate pass and that duty was paid and payable on the basis of value finally shown at the time of sale from the sales depot. In other words, they claimed that they were entitled to value the goods on the basis of challan and advice notes by virtue of Rule 173-C(11). But there was no denial that the price at the factory gate was ascertainable and fixed.

5. The assessing authority held that the assessable value must he the value at the factory gate. In the appeal filed by the respondents, the Tribunal has held that once Rule 173-C(II) applies then the assessee is entitled to have its value fixed as per the invoices.

6. We are unable to agree with the view expressed by the Trihunal. The Tribunal has ignored the proviso to Rule 173-C(II). It is true that in cases where, having regard to the nature of the goods and frequent fluctuations of the price of the goods, an assessee or class of assessees may be allowed to declare price of goods on the basis of the challan and advice note. But those are cases where it is not possible to determine the value in accordance with Section 4. Under Section 4, as it t