M. Gouri Shankar Murthy, Member (J)

1. The facts, in brief, in this Revision Petition under Section 36 of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act), transferred to the Tribunal and heard as an appeal, in terms of Section 35P of the Act or-

(a) the Appellant manufactured various qualities of the tread rubber and repair compound, falling under Item 16-A(2) of the First Schedule to the Act during the relevant period ;

(b) as would appear from the adjudication order, in the price-list filed prior to 15.9.75, the Appellant had indicated the wholesale price at which the goods were sold through sales depots at Madras, Vijayawada and Kolhapur;

(c) on or about 15-9-75, the Appellant filed a price-list in proforma Part V meant for excisable goods sold in retail for the purpose of valuation in terms of the amended Section 4 of the Act, which was to come into effect from 1-10-1975, showing, inter-alia, selling expenses, cost of transportation, etc. apart from what was claimed to be the price of goods wholly sold in retail;

(d) it was claimed that the goods in question were sold in retail through sales depots at Madras, Vijayawada and Kolhapur. Consequently, there was no ex-factory price and the assessable value had accordingly to be determined under Rule 6(a) of the Central Excise (Valuation) Rules, 1975 (hereinafter referred to as the Rules), deducting from the retail price, cost of transportation, selling expenses, etc.

(e) in adjudication, it was held that the assessable value of the Appellant's products was their billing prices proved by their invoices to be cum-duty ex-factory prices and which are necessarily wholesale prices less the element of excise duty contained therein;

(f) in Appeal, it was held that the direct sale to industrial consumers falls within the definition of the expression "wholesale trade" in Section 4(4) (a) of the Act and consequently there was, in actual effect, no retail sale at all in the facts and circumstances of the case. Accordingly, the Appellate Collector ruled out the applicability of Rule 6(a) of the Rules.

2. The questions that arise for determination, are-

(a) Whether, in the facts and circumstances of the case, the Appellant sold the goods manufactured by him, in retail, in terms of Rule 6(a) of the Rules, during the relevant period ?

(b) Whether the price at which the goods in question were ordinarily sold by the Appellant was in the course of wholesale trade within the definition of the said expression in Section 4(4)(e) of the Act ?

(c) Whether the assessable value of the goods in question was to be determined excluding-