The wholesale cash price for the purpose of determining excise duty is the price charged by the manufacturer to the first wholesale buyer without any extra-commercial considerations.

( 1 ) THE short point in this appeal is whether the learned Single Judge was right in holding that the price charged by the Petitioner-Respondent Company to its sole distributors M/s. Voltas Ltd. represented the wholesale cash price within the meaning of Section 4 (a) of the Central Excises and Salt Act, 1944 (as the said provision stood before 1-10-1975) for determination of excise duty on the tractors manufactured by the Petitioner-Respondent Company. Before we deal with the question, we may briefly set out the facts.

( 2 ) THE International Tractor Company of India Ltd. with which the Petitioner Company subsequently had merged during the period from 4th October 1971 to 11th February 1972 and from 14th February 1972 to 12th October 1972 had sold diverse number of tractors of the said Company to M/s. Voltas Ltd. under a distributorship agreement dated 17th March 1970. The said distributor Company in turn had sold the said tractors to various parties. In the event the said sales during the two periods in question were on the basis of principal to principal without any extra commercial considerations as claimed by the Petitioner-Respondent which was upheld by the learned Single Judge, undisputedly the price paid by the said distributor Company should be considered as the wholesale cash price for the purpose of determination of excise duty upon the goods manufactured by the International Tractor Company of India Ltd. with which the present Petitioner had subsequently merged on 3rd November 1977. On the other hand, if the said transaction between the manufacturer Company and the distributor Company amounted to an agency agreement for reaching the wholesale buyers of the manufacturer Company's products for the purposes of Section 4 (a), what would be relevant would be the price charged by the distributor Company to the other wholesale purchasers of the manufacturer Company's products. We note that for the two periods in question, viz. , 4th October 1971 to 11th February 1972 and 14th February 1972 to 12th October 1972, excise duty had been assessed taking the price charged by the distributors M/s. Voltas Ltd. as the wholesale cash price of the tractors manufactured by the Company. During the third period, however, viz. , 13th October 1972 to 30th September 1975, goods were cleared by paying provisional duty on the basis of the price charged by the manufacturer Company to its distributor. In the event the contention of the Petitioner-Respondent be upheld regarding the wholesale cash price of its products, it would be entitled to the refund of the amounts set out in the order of the learned Single Judge.

( 3 ) HAVING heard the learned Counsel for both sides and having perused the materials on record, we are in entire agreement with the learned Single Judge that in the present case the price charged by the manufacturer Company for sale of its products to the distributor had been rightly held by the learned Single Judge to be the wholesale price within the meaning of Section 4 (a) for the purpose of assessment of excise duty. Accordingly, the refund claims made by the Petitioner Company were wrongly rejected by the Assistant Collector after remand made by the Appellate Collector.

( 4 ) THE law on the point is well settled. We will, therefore, deal with the same in brief before dealing with the terms of the agreement under which the transactions in question took place between the manufacturer Company and the distributor Company. In the well known case of A. K. Roy v. Voltas Ltd. , after referring to the decisions of the various High Courts, Mr. Justice Mathew in paragraph 18 of his judgment had observed that the said decisions of the High Courts insofar as they held that the price of sales to wholesale dealers would not represent the wholesale cash price for the purpose of Section 4 (a) of the Act, merely because the manufacturer had entered into agreements with them stipulating for commercial advantages were no