Per Archana Wadhwa :

The issue involved in all these appeals is the same. As such a common order is being passed. The issue relates to the determination of the assessable value of calcined alumina transferred from appellants' factory at Damanojodi to its other factory located at Angul for the manufacture of aluminium. Out of the total production of alumina, about 50% is exported by the appellant, 44% is consumed in the production of aluminium metal in their smelter plant at Angul by way of transfer of stock in part VI price list and the balance amount is sold to M/s. BALCO who is also a manufacturer of aluminium metal in the public sector and small quantities of alumina are also sold to casual buyers at the factory gate. For sale of alumina to the buyers at the factory gate the appellants filed a price list in part-I with remark that - "this price list is applicable to only supply of calcined alumina to customers lifting small quantities without formal purchase order."

2. The Department's contention is that the price at which the alumina was sold to the independent buyers at the factory gate should be treated as a normal price under the provisions of Section 4 (1)(a) and should be adopted as assessable value for inter-plant transfer. The assessees' submission on the other hand is that having regard to the negligible quantity purchased by these buyers at the factory gate, the price thereof cannot be called as wholesale price. The sales to these buyers were sporadic in nature without any regularity or consistency and as such they cannot be treated as ordinary sale in the course of wholesale trade. They have further contended that the sale made at the factory gate to one class of buyer would not be the assessable value for all clearance as is the settled law. It is submitted by their Advocate Shri V. Sridharan that there are more than one class of buyers which would come into play and as such Section 4 (1)(a) price is inapplicable in such case. He submits that value of the captive consumption removal has to be determined under Section 4 (1)(b) read with Rule 6 (b)(i) of the Central Excise Valuation Rules. He submits that there are two prices available under Rule 6 (b)(i) - the price charged from casual buyers and price charged from M/s. BALCO. He submits that BALCO is a manufacturer of aluminium like the appellants but the casual buyers are all non-aluminium manufacturers but are manufacturers of refractories. As such no comparison can be made to the price charged from these small time casual buyers who are not even aluminium manufacture, the final product, for which alumina is mostly used. He submits that the bulk buyers and casual buyers are two different class of buyers and different prices charged from them are justified. He submits that if at all the sale price of the appellants has to be adopted as the assessable value for captively consumed alumina the price at which the goods were being sold to BALCO would be more appropriate. In support of his above submissions he relies upon a number of judgment of the various authorities. On the other hand Shri N.K. Sarkar, learned JDR appearing for the Revenue submits that if the assessee is covered by the provisions of Section 4 (1)(a) the provisions of Section 4 (1)(b) are inapplicable. He submits that the factory gate sale being available, the same would apply to the captively consumed items notwithstanding the percentage of such sale. Section 4 (1)(a) used the expression 'buyer' which can be of any type and need not be a particular type of buyer similarly situate to the assessee. He distinguishes the judgment relied upon by the appellants by submitting that the same were rendered in peculiar circumstances and the ratio thereof is not applicable to the instant case.

3. We have considered the submissions of both the sides. The appellants have submitted a chart showing total quantity manufactured by them, quantity transferred to their smelter unit at Angul, quantity exported, quant