Full Judgment
2. The appellants manufactured Refrigerators. With effect from 28.2.94 duty on Refrigerators was changed from specific rated to advolorem. No sales were effected at the factory gate. Sales were effected from 26 depots situated all over the country. The appellants filed price lists.
They had certain difficulty in giving certain figures and therefore they requested that assessments be kept provisional. They filed a provisional assessment bond and submitted details of agreements with 3 classes of buyers viz. Whole Sale Dealers, Sale and Service Dealers; and Only Sales Dealers. Subsequently, from time to time price declarations were filed. The prices at which the refrigerators were sold to these 3 varieties of buyers were different. The prices charged from the only sales dealers(OSD) were the highest. Show cause notices were issued proposing to adopt the price charged to OSD as the price for assessment for all clearances. Before the Assistant Commissioner the assessee claimed that the 3 varieties of dealers were classes of buyers and that separate prices charged to classes of buyers were permissible in terms of Section 4 of the Central Excise Act, 1944. It was claimed that irrespective of the prices charged by the assessee to several classes of buyers, customers' price remained the same. The Assistant Commissioner observed that he wholesale dealer (WSD) and the sales and service dealer(SSD) were rendering after sale service, whereas the only sales dealers(OSD) were not required to provide such services. It was held that after sale service would enrich the value of the goods in the eye of the customers and therefore that part should be added to the assessable value. When so done, the price charged from the OSD would be the correct price. In holding so, he relied upon his earlier Order-in-Original No. 45/99(CVC) dtd. 27.2.97.
3. The cited order was upheld by the Commissioner of Central Excise(Appeals) Bhopal which order was before the Tribunal for disposal in the judgment referred to above. In the judgment, the Tribunal held that the agreement between the dealers and the assessee being on principal to principal basis and also at arm length, the portion of the discount given to WSD and SSD for undertaking free services did not amount to additional consideration. The Tribunal also found that the 3 dealers were in fact classes of buyers and that charging of different prices to each category was within the ambit of Section 4 of the Central Excise Act, 1944. [Order No (I/2224/WZB/2001 dt 31.7.2001] 4. Since the order cited above covered the situation in these two cases, the appeals are allowed. The price lists shall be finalised and assessments completed in terms of this order.
5. Before we part with this case, we would observe that the Commissioner(Appeals) was wrong in dismissing these appeals on the ground that the order-in-assessment was not appealable order. In the judgment in the case of Jay Chemical Industries [1999(110) ELT 628] the Tribunal has held that assessment on RT.12 return was an appealable order. He should keep in mind this judgment in dealing with similar cases in future.