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4. On the other hand, Shri R. Raghavan, learned Advocate, submitted that the pesticides are being marketed in bulk quantities and market exists in bulk quantities for pesticides: that repacking of pesticides does not amount to manufacture; that the repacked pesticides had not been brought back to the factory at Ennore and these had been sold from Velachery and Ambattur: that value has to be determined for the goods in the form in which they are cleared from the factory and as there is an admission that goods are cleared in bulk, the value has to be determined only for bulk goods: that as there is no sale of impugned goods at the factory gate, the determination of value under section 4 (1)(b) of the Act read with Rule 6 (b)(ii) and Rule 7 of the Valuation Rules is in order. The learned Advocate, further, mentioned that the issue involved in the present matters is squarely covered by the decision of the Tribunal in the case of Savita Chemicals Ltd. Vs. CCE, Mumbai VI, 1989 (34) ELT 573 (CEGAT). He mentioned that was held in that case that repacking or packing would not amount to a process of manufacture; before amendment made on 28.9.96 whereby clause (iii) was inserted in Section 4 (4) (b) of the Act, the factory gate was the place of removal for the determination of normal price. It was held by the Tribunal as under:-

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If the normal price of excisable goods is not ascertainable for the reason that the goods are not sold or for any other reason, the value of such excisable goods (i.e., the nearest ascertainable equivalent) shall be determined in the manner prescribed by rules (Valuation Rules).

7. The facts which are not in dispute in the present matter are that pesticides in bulk lis not sold at factory gate. Pesticides in 200 ltr containers is cleared to the Repacking units of the Appellants and after repacking in small packs, these are sold in wholesale. It is also not disputed fact that repacking into smaller packs does not amount to manufacture. In view of these facts it is apparent that there is no factory gate price available for pesticides either in 200 ltr packings or in smaller packings. Accordingly, the ratio of the decision in the case of Indian Oil Corporation Ltd., supra, is not applicable as in that case the goods were sold in bulk from factory and normal price was ascertainable at the factory gate which is not so in the present matter. Similar is the position in the case of Savita chemicals Ltd., supra s the automotive Oil manufactured by them were sold in bulk in tankers to buyers at the factory gate. The other differential factor in Savita Chemicals's case is that the bulk oil was sent to M/s. Unique Packers, a third party, and not to the Repacking units of the manufacturer as is the case in the present matter. In view of these facts the Tribunal held in Savita Chemicals that factory gate price, being available in respect of oil sold in bulk, has to be adopted. The goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade only in small packs. The Apex Court, in MRF case, held that "So far as depot sales are concerned, they are to a different class or classes of buyers and in respect of each of such class of buyers would be the normal price". The Supreme Court did not apply the price at which MRF sold the goods to the Government. Following the ratio of MRF decision, the value for the purpose of levying excise duty will be the price at which impugned goods are sold in smaller packs. The Appellate Tribunal also in the case of Adonia India Ltd. Vs. CCE, Meerut , 2000 (39) RLT 1035 (CEGAT) held that assessable value is to be determined on the basis of sale price of sole buyer to his dealers after allowing permissible deductions. In the present matter, the learned Advocate for the Respondents has claimed that value has to be determined under Rule 6 (b) (ii) of Valuation Rule. We are unable to agree with this submission as Rule 6 (b) comes into picture only when the excisable goods are not sole by the assessee but are used or consumed by him or on his behalf in the production or manufacture of other articles. It nos in dispute that the Respondents have not used or consumed the impugned goods in the production or manufacture of other articles as the process of repacking does not amount to manufacture. the goods are merely stock transferred to their Repacking units. In Proctor & Gambel India Ltd. Vs. CCE,Inodore, 2000(120)ELT 548, the Appellants removed AMS in bulk (detergent poweder)for packing further in sachets of 20 gms. and 30 gms. to M/s. Industrial Enterprises and department sought to charge duty on the assessable value of 20 gms. and 30 gms. sachets supplies to Appellants' Depots. The Tribunal held that as the Appellants had not disclosed to the Department that the bulk clearance of the goods from their factory was a stock transfer of the goods and there was no transfer of ownership, extended period of limitation is applicable and duty demanded was confirmed. The learned Advocate for the respondent had raised the point that the goods in small packs are not the same goods. The goods cleared by them are pesticides and goods in small packs are also pesticides and nothing else. Neither the brand of goods nro capacity ofthe goods has changed. Accordingly we hold that the Respondents have to pay excise duty on the value of the goods at which these are sold in small packs. We, thus, set aside the impugned order and allow both the appeals filed by the Revenue. It has been mentioned by the Respondents in cross objection that demand is time barred without mentioning any basis for the same. We, however, find that show cause notices were issued on 5.3.96 and 12.3.96 demanding duty for the period 1.9.95 to 31.1.11996 which are which are within the period of six months specified in Section 11A?(1) of the Central Excise Act. Accordingly the cross objection filed by the Respondents in also rejected.

(i) the appellants are manufacturers of Pesticides
(ii) The Pesticides fall under Chapter 38 of CETA'85
(iii) The pesticides are being marketed in bulk quantities; market exist in bulk quantities for pesticides; pesticides are being sold in bulk quantities.
(iv) Repacking of pesticides does not constitute manufacture either under Sec.2(f) of CESA'44 or deemed to be "manufacture" under Section notes or chapter notes of CETA'85
(v) The appellants were not selling pesticides in bulk at their site. Therefore, the appellants did not have factory gave wholesale price for the pesticides.

9. They contend that in the light of grounds (i) to (ix) above, AC's order is incorrect in holding that repacked pesticides were being brought back to the factory. They state that there is no evidence on record to substantiate the findings at they refer to the replies made to the SCN filed by them. They have further challenged the AC's findings that repacking would amount to manufacture and contend that question before the AC was not the one of inclusion or exclusion of packing charges in terms of Sec.4(4) (d) (i) of CESA'44 was correct or not. They submit that they had always included the cost of containers in which the bulk pesticides were being cleared indetermining the value for the said bulk quantities. They contend that there was nothing in the impugned order of AC to suggest that the cost of packing was not included in the value declared and there was no such allegation in the SCN. It is their case that repacking cannot constitute manufacture unless specifically deemed to be so in terms of CESA or CET Act with particular reference to the goods in question.They contend that they have evidence to show that the goods namely pesticides were marketed in bulk.When pesticides in bulk is a marketable commodity and being so marketed, they contend that is obligatory in terms of Sec.3 of CESA'44 read with rule 9 of CER'44 to determine value under Sec.4 (1) (b) of CESA'44 for the purpose of payment of duty when Pesticides are removed in bulk from their factory. Therefore, they challenged the AC's view that depot price has to be adopted as value for removals from the factory. They contend that this can be done only from the date of amendment of Sec.4 of CES'44 through Fiance Bill 1996, i.e. the period after 31.1.96 while the present case was pertaining to a period earlier to amendment i.e. for period from 1.9.95 to 31.1.96. Therefore, they stare that depot price cannot be the value and the value has to be determined in terms of Sec.4(1) (b) read with Central Excise Valuation Rules in the absence of Section (1) (a) normal price value for the subject goods. They have seriously disputed that price for repacked commodity available at the depot cannot be the basis for being adopted as value in respect of bulk goos removed from the factory. They state that AC as not justified in rejecting the Tribunal judgment rendered in IOCL case and the order of AC Madras II division in Brakes India case on the plea that in both the caes the manufacturer had wholesale price for the bulk quantities at the factory gate and therefore when the goods are repacked at a place other than the factory there was no need to pay duty on the basis of price charged for retail packing. They state that scheme of Section 4 is clear is as much as that if price for the goods is available at the factory then all removals from the factory shall be at the price and the said price will be "value" under Sec.4(1)(a).If however, price for the goods (under clearance) is not available at the factory gate and then value shall be determined based on Sec.4 (1) (b) and hence citation relied upon by them is totally applicable to the facts of the case. They strongly contend that Commissioner also did not see the point that assessee had cleared pesticides in bulk quantities from the factory on payment of duty and repacking was done at a place far away from the factory and the goods repacked never returned to the factory. Therefore, the Commissioner although decided the case in their factor but had not put these facts in his order for the purpose of proper appreciation and hence they have filed the cross objection against the findings given by the Commissioner.