V.T. Raghavachari, Member (J)

1. M/s. Voltas Limited manufacture, amongst other things, diesel and battery operated fork lift trucks, falling under tariff item 34-B C.E.T. In the price list filed by them in proforma part V, which is meant for excisable goods for sale in retail, they claimed deduction of selling and administrative expenses and interest on working capital. The deduction claimed was at 9.66% for diesel fork lift trucks and 10.49% for battery operated fork lift trucks. The Assistant Collector in approving the price list held that the deduction claimed under the above heads was not covered by the provisions of Rule 6(a) of the Valuation Rules and was hence not admissible. He, however, held that he was permitting deduction to the extent of 7.5% on the retail prices declared. The assessee appealed and the Appellate Collector, under order dated 12.8.1976, set aside the order of the Assistant Collector on the ground that it was not a speaking order and that no opportunity had been given to the assessee to make representations before the Assistant Collector passed the order. He remitted the matter to the Assistant Collector for de-novo proceeding and passing a speaking and appealable order. Thereafter the Assistant Collector took up the matter for adjudication and issued notice dated 15.10.1976 directing the assessee to show cause why the prices claimed for approval should not be rejected and, instead, prices be arrived at by reducing the retail prices mentioned in the price list. In annexure 'A' attached to the show cause notice it was mentioned that the deduction claimed by the assessee appeared to be very high and since the value to be approved is to be determined under valuation Rule 6(a) it was considered necessary and reasonable to reduce the retail prices declared in the list by 7.3% to arrive at the price at which it appeared that the assessee would have sold such goods in the course of wholesale trade. The assessee sent a reply. On further adjudication, the Assistant Collector passed order dated 13.9.78 under which he held that the wholesale cash price at which the assessee sells the goods to the buyer is available, and there can be no abatement from the said price. He further held that differential duty on past clearances from 1.10.1975 should be recovered. He however further observed that he accepted the different prices charged from the different buyers of the same class provided they are properly declared. The assessee again appealed against this order. The Appellate Collector, under order dated 11.6.1980, held that there was no justification for the conclusion of the Assistant Collector that there was available a wholesale price for the subject goods and, therefore, the assessable value was to be determined in accordance with Section 4(1)(a) of the Central Excises and Salt Act. Accordingly he remanded the case to the Assistant Collector with a direction to redetermine the assessable value under the provisions of Section 4(1)(b) of the Central Excises and Salt Act read with the relevant Central Excises (Valuation) Rules. He directed that in doing so the Assistant Collector shall determine the extent to which the assessee would be entitled for abatement under the various heads claimed by the assessee.

2. The Central Government, being of the view that the abovesaid order of the Appellate Collector was not proper, legal and correct, issued on 15.5.1981 notice under Section 36(2) of the Central Excises and Salt Act proposing to set aside the order of the Appellate Collector and to pass such order as may be deemed fit thereafter. The Government was of the view that the Assistant Collector was justified in holding that the wholesale price of goods was available and the assessable value was to be determined under Section 4-(1)(a) of the Central Excises and Salt Act. The assessee replied opposing the proposed review and supporting the order of the Appellate Collector. It is the proceeding initiated under the sai