Harish Chander, Member (J)

1. M/s. Dharampur Leather Company had filed six Revision Applications to the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi being aggrieved from Order-in-Appeal No. 1321/78 dated 30.11.78 passed by the Appellate Collector, Customs and Central Excise, Bombay. The learned Appellate Collector, Central Excise had disposed of six appeals by a consolidated order. After corning into existence of the Tribunal, the said Revision Applications were transferred to the Tribunal in terms of the provisions of Section 35P of the Central Excises and Salt Act, 1944, to be disposed of as appeals. Since a common issue is involved, all the six appeals are disposed of by a common consolidated order. Since the facts of all the six appeals are similar, the facts of the matter in respect of appeal No. 219/79 are reproduced below:-

2. Briefly, the facts of the case are that Dharampur Leather Cloth Co. Pvt. Ltd. had charged different prices in the invoices for the period from 23rd January, 1975 to 21st May, 1975 than approved prices. Superintendent, Central Excise, Bulsar issued a show cause notice dated 21.1.75 to them for short levy amounting to Rs.48,499.17 under Rule 10 read with Rule 173J of Central Excise Rules, 1944. In reply to the said show cause notice, the assessee had pointed out that the demand issued was bad in law in as much as it was based on goods sold on higher rate which was only 2% to 20% of the total material billed on a particular date. In all other cases 80% to 90% the goods were sold at approved prices. They had also stated that it was unreasonable and improper to treat entire material as capable of being sold at high prices when small quantity was sold at highest prices which was given by customers who required this small quantity due to demand in market and shortage of material in market and they were' not regular customers. It was further contended by the assessee that the price of stray and sporadic sales should not be treated in wholesale prices for the wholesale, and sometimes the material so sold was even sold on the approved price.

3. The learned Assistant Collector did not accept the contention of the appellant on the ground that the prices were approved under Section 4 of the Central Excises and Salt Act, 1944, and there being no wholesale market at the factory gate the prices of nearest place i.e. Bombay where market exists have taken as base for approval of price. The assessee's contention that the sales are from 2% to 20% at higher rates, and that they are stray and sporadic sales does not appear to be correct. The wholesale price was that at which the goods were capable of being sold at the time of removal of the article chargeable with duty (from factory in this case) at nearest place which was Bombay where wholesale market, exist and price of that place have been got approved. He had confirmed the demand raised by the learned Superintendent of Central Excise, Bulsar.

4. Similar were the observations of the learned Asstt. Collector in the other five matters. Being aggrieved from the orders passed by the learned Assistant Collector of Central Excise, the assessee had filed appeals before the learned Appellate Collector of Customs and Central Excise, Bombay. Before the learned Appellate Collector, it was contended by the assessee that the higher prices included selling cost and selling profit and this point was not taken up before the Assistant Collector at the time of adjudication. It was further argued that RT 12 returns had been finalised according to the approved classification list and the price list. Re-opening these price list will amount to sitting on judgement of the orders already issued, and the Assistant Collector did not enjoy this right under Section 35 of the Central Excises and Salt Act, 1944. It was further argued that one appeal was in time, and in one appeal and it was also argued that the price should be the price at wh