Full Judgment
2. The revenue entertained the view that the manufacturing cost and the manufacturing profit of the appellant, if taken into consideration, would result in higher assessable value of the profit. This requires the appellant to pay higher duty. On these allegations, the proceedings were initiated against the appellant by way of issuance of the show cause notice. During adjudicating procedure, the appellant produced on record the Chartered Accountant Certificate in support of the contention that the manufacturing cost was well within the price being charged by Glaxo from their customers and as such the duty has been correctly discharged by them. The revenue did not accept the above contention. However, the revenue also did not ascertained manufacturing cost but confirmed the demand of duty by adopting the highest price charged by Glaxo India Ltd. from its customers during that period.
3. Appealing in support of the appellants Shri. M.V. Ravindran, Ld.
Advocate submits that during the relevant time, various orders were placed on Glaxo by their customers for supply of the said product by way of specific Purchase Order. He fairly agrees that there was huge price variations in the different Purchase Order's depending upon a number of commercial factors like availability of product, slum in the market and other commercial circumstances. He submits that as long as, the price agreed upon by way of contract between Glaxo India Ltd. and its customers, received by Glaxo and nothing flows back to them, the price becomes the correct assessable value. He draws attention to clarificatory orders of the Honourable Supreme Court in the case of Ujagar Prints v. UOI [1988-39-ELT-535 (SC)] and also draws attention to Paragraph 2 of the order, in which it was held that the price at which the trader sells the goods in the market and the same to the job worker, the same be taken as assessable value. He also draws our attention to decision by Supreme Court in the case of Gurunanak Refrigeration Corpn. laying down that where the whole sale price to the buyers was less than the cost of production of the goods and there was no flow back of the money to the buyer, i.e to the assessee, the price at which the goods were sold should be accepted.
4. Shri. A.K. Saxena, Ld. JDR appearing for the revenue submits that because of non co-operation by the assessee, revenue could not ascertain the cost of goods in question. As such, the adjudicating authority was only left with an alternative to adopt the highest sale price charged by Glaxo India, He also submits that in terms of clarificatory order of the Supreme Court in the case of Ujagar Prints, the price of the goods being sold held in the market must contain the value of raw material + value of job work + the manufacturing cost.
Thus, revenue is entitled to look into the various factors and find out whether the price at which the goods were being sold by Glaxo India Ltd inclusive of all the addition or not. Accordingly, he submits that the matter be remanded to the original adjudicating authority to do the needful.
5. After considering the submissions made by both the sides, we find that the commissioner's order is required to be set aside and matter needed to be remanded to the original adjudicating authority for fresh decision in the light of the clarificatory order of Honourable Supreme Court in Ujagar Prints. The appellant are at a liberty to rely on any other decisions. Appeal is disposed off in above terms and stay petition also gets disposed off.