The determination of the wholesale cash price for the purpose of assessment under section 4 of the Central Excises and Salt Act, 1944, involves locating the nearest wholesale market and finding the wholesale cash price in such a market at the time of removal of the article from the factory.

( 1 ) THE facts in this case arc shortly as follows: The respondents carry on business in co-partnership as manufacturers of rubber and canvas goods including shoes, under the name and style of Olympia Rubber Works, at No. 10. Pay-mental Garden Lane in Calcutta. Under the Finance Act 1954 foot-wear is dutiable under the Central Excises and Salt Act, 1944 (hereinafter referred to as the "said Act") at the rate of 10% ad valorem. How the valuation is to be determined for the purpose of calculating duty appears from section 4 of the said Act, the relevant part whereof is set out below:" (4) Determination of value for the purpose of duty (a) Where under this Act any article is chargeable with duty at a rate dependent on the value of the article such value shall be deemed to be the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold at the time of the removal of the article chargeable with duty from the factory or any other premises of manufacture or production for delivery at the place of manufacture or production or if a wholesale market does not exist for such article at such place at the nearest place where such market exists, or (b) Where such price is not ascertain-able, the price at which an article of the like kind and quality is sold or is capable or be-ins sold by the manufacturer or producer or his agent, at the time of the removal of the article chargeable with duty from such factory or other premises for delivery at the place of manufacture or production or of such article is not sold or is not capable of being sold at such place, any other place nearest thereto. Explanation:-- In determining the price of any article under this section no abatement or deduction shall be allowed except in respect of trade discount and the amount of duty payable at the time of the removal of the article chargeable with duty from the factory or other premises aforesaid. "this section came to be construed by me in the case of National Tobacco Co. of India Ltd. v. Collector of Central Excise, The learned Judge in the court below has relied upon it and Mr. Roy Chou-dhury for the appellant does not dispute its correctness Briefly speaking, the proce-dure should be as follows:- "wholesale price" means the price which a wholesale dealer and not a retail dealer, charges for his goods, when he sells them in wholesale units, in a wholesale market. These wholesale units may be different for different classes of goods at different places. First, we must determine the location where the wholesale cash price is to be determined. The word "wholesale market", means a place where the article in question is habitually sold to anybody who wishes to make a sale or purchase at wholesale prices. Normally, the wholesale price to be taken into account, would be the wholesale price in the nearest wholesale market. It is not that a factory cannot be a wholesale market, if it can be shown that good. s are habitually sold there at wholesale rates to every one who wishes to sell or purchase But the mere fact that a factory manufactures the articles at a particular place and sells them there to its stoc-kists or dealers will not by itself convert it into a wholesale market. What would be the location of the nearest whole-sale market and the particular wholesale price for a specified class of goods must be determined upon the facts of each case. If the precis goods in question are not sold in the nearest wholesale market, then it might be necessary to consider the price of goods of like kind and quality. Lastly, if no actual sale of those goods is discernible in any market within reasonable proximity, it might be sufficient to establish that such Roods were capable of being sold at such prices in the nearest wholesale market. So far as the time is concerned, the calculation must be made with reference to the time when the goods are removed from the factory or the place of manufacture or production fo