Jeet Ram Kait , Member (T)

1. All these five appeals are directed against order in Appeal Nos. 16 & 17/95 (CBE) dt. 28.2.95 by which the Collector of Central Excise (Appeals), Chennai by following the judgments rendered by the Tribunal in the case of CCE, Madras v. Ashok Leyland Ltd., : 1987 (29) ELT 530 has upheld the order of the Assistant Collector adopting the ascertainable/available price "for the goods captively consumed.

2. Appearing on behalf of the appellants Ld. Counsel Shri R. Raghavan fairly conceded that the case has been decided by the Honble Apex Court against them in the matter of Ashok Leyland Ltd. v. CCE, 2003 (87) ECC 508 (SC) : : 2002 (146) ELT 503 (SC) by which the Apex Court has held that if the normal price is ascertainable, the goods transferred to the sister unit have to be assessed under Section 4(1)(a) of Central Excise Act, 1944 and not under Section 4(1)(b) ibid or Rule 6 of Central Excise (Valuation) Rules, 1975. However, he submits that the CBEC has issued a Circular No. 82/2002-Cus.Vdt. 3.12.2002 in which the CBEC examined the issue in para 4 of the circular and the decision of the Board in this regard is that dual prices in respect of components imported as OE parts and as spare parts had to be accepted unless there was evidence to the contrary. To reject the transaction value, the onus is on the department to establish that price is not the sole consideration for the sale/transaction. This would be consistent with the practice on the Central Excise side. He further submitted that though the circular is pertaining to transaction value of the Auto Components as OE parts and service parts and the department has been following this practice from 1957 the same should be the practices of the Central Excise. He further submits that the circular has come after the judgment of the Supreme Court rendered in their own case mentioned supra. Therefore, the department should have at least now accepted the dual value in consistent with the practice. He further submits that the circular issued by the Department is binding on the filed formation even if it is inconsistent with the statute. In this case he relied on the judgment rendered by the Supreme Court in the case of Paper Products Ltd. v. CCE, 1999 (66) ECC 36 (SC) : : 1999 (112) ELT 765 (SC) wherein the Apex Court has held that to maintain consistency and discipline, the department circular has to be followed by the department. He, further submits that the Apex Court has passed this order in the absence of the Board Circular.

3. Ld. SDK Smt. Bhaghya Devi submits that in their own case reported in : 2002 (146) ELT 503 (SC) the Apex Court has held that when normal price is ascertainable and available at the factory gate, the goods transferred to the sister units have to be assessed under Section 4(1)(a) of the Central Excise Act, 1944 and not under Section 4(1)(b) ibid or rule Rule 6 of the Central Excise (Valuation) Rules, 1975. She relied on the para 10 of the above judgment rendered by the Apex Court. As regards Boards circular she submits that this circular is not relevant at all to this case as this is a Customs circular which has been issued in respect of the transaction value in respect of imported auto components as OE parts and service parts and this has got nothing to do with the mode of assessment of such OE parts in the domestic market. Further she submits that this circular was pertaining to the acceptance of the transaction value and it was in that background clarified that the transaction value cannot be rejected and the onus is on the department to establish the price. She further submits that the price is available of the spare parts and since the parts are similar and price is ascertainable at the factory gate in respect of OE also, the same value has to be taken. The Circular is not at all relevant therefore the assessment will not be applicable to the fact of their case.

4. We have considered the submissions made by both sides and find that since normal price is ascertainable at the factory gate, the goods transferred to the sister units have to be assessed under Section 4(1) (a) of the Central Excise Act, 1944 and not under Section 4(1) (b) ibid or under Rule 6 of the Central Excise (Valuation) Rules, 1975. The Apex Court, in the matter of Ashok Leyland Ltd. v. CCE, Madras, 2003 (87) ECC 508 (SC) : : 2002 (146) ELT 503 (SC) have held so in para 10 of the above-said judgment. We also find that the Board circular is not relevant to them as this was regarding acceptance of transaction value in the case of imported auto components as OE parts and Service parts. In other words the dual price of the same items are possible in International trade, that is not the position in the case of the domestic manufacture where it is well settled by the Apex Court that when the value is ascertainable at the factory gate that value alone has to be taken for the assessment purpose in respect of the goods under Section 4(1)(a) of the Central Excise Act, 1944 and not under Section 4(1)(b) ibid and under Rule 6 of the Central Excise (Valuation) Rules, 1975. We, therefore, do not think that this circular is helpful to them. The Apex Court judgment quoted by the Ld. Counsel in respect of Paper Products Ltd. (supra) is not applicable to the fact of the case. Therefore, respectfully following the judgment rendered by the Apex Court in the appellants own case reported in : 2002 (146) ELT 503 (SC) , we reject all the five appeals. Ordered accordingly.