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TMI Blog1986 (6) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar, the facts of the matter in respect of Appeal No. 219/79 are reproduced below :- 2. Briefly, the facts of the case are that Dharampur Leather Cloth Co. Pvt. Ltd. had charged different prices in the invoices for the period from 23rd January, 1975 to 21st May, 1975 than approved prices. Superintendent, Central Excise, Bulsar issued a show cause notice dated 21-1-1975 to them for short levy amounting to Rs. 48,499.17 under Rule 10 read with Rule 173J of Central Excise Rules, 1944. In reply to the said show cause notice, the assessee had pointed out that the demand issued was bad in law inasmuch as it was based on goods sold on higher rate which was only 2% to 20% of the total material billed on a particular date. In all other cases 80% to 90% the goods were sold at approved prices. They had also stated that it was unreasonable and improper to treat entire material as capable of being sold at high prices when small quantity was sold at highest prices which was given by customers who required this small quantity due to demand in market and shortage of material in market and they were not regular customers. It was further contended by the assessee that the price of stray and spo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highest rate would be the price at which the goods were capable of being sold at market nearest to the factory gate. The learned Appellate Collector of Central Excise did not accept the contention of the appellants that the Assistant Collector had no competence and jurisdiction to raise demands on short assessments discovered after the approval of the classification list and price list and even finalisation of RT 12 returns. He had held that the recovery of such short levy was being made under Rule 10. The only bar was the limitation provided under Rule 10 of the Central Excise Rules read with Rule 173 of the Central Excise Rules. The learned Appellate Collector of Central Excise had rejected the five appeals and in respect of Appeal No. V/19(3)/ 7/76-M/P-II dated 15-9-1977 had held that the demand was time barred. Being aggrieved from the aforesaid orders, the appellant filed Revision Application to the Central Government which stand transferred to the Tribunal to be disposed of as appeals. 5. Shri J.M. Patel, the learned Advocate has appeared on behalf of the appellants. He has reiterated the contentions made in the Revision Application. He has pleaded that in terms of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1941 Patna 527 wnerein the Hon ble High Court had held that though an Income-tax officer is not bound by the Rule of res judicata or estoppel by record yet he can re-open a previous decision on a same matter and come to a different conclusion only if fresh facts come to light. Shri Patel, the learned Advocate has pleaded that in the present matter, no fresh facts had come to the notice of the Assistant Collector and as such the earlier assessments cannot be re-opened. He has referred to another judgment of the Government of India in the case of Fertilizer Corporation of India Ltd. reported in 1982 E.L.T. 812 where the Board had held that if the demand of duty was disposed of by the Assistant Collector s orders, the Additional Collector was not competent to re-open the issue on the basis of a fresh demand. He has pleaded that the facts of the appellant s case are similar and appellant s case is fully covered by an earlier judgment of Central Board of Excise and Customs and the appeal should be accepted. 8. In reply, Shri P.K. Ajwani, the learned Senior Departmental Representative has referred to the provisions of old Section 4 which was substituted by new Section 4 with effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be (a) the wholesale cash price, for which, an article of the like kind and quality is sold or is capable of being sold at the time of removal of the article chargeable with duty from the factory, or any other premises of manufacture or production for delivery at the place of manufacture or production, or if a wholesale market does not exist for such article at such place, at the nearest place where such market exists, or (b) where such price is not ascertainable, the price, at which an article of the like kind and quality is sold or is capable of being sold by the manufacturer or producer, or his agent, at the time of the removal of the article chargeable with duty from such factory or other premises for delivery at the place of manufacture or production, or if such article is not sold or is not capable of being sold at such place, at any other place nearest thereto. Explanation. - In determining the price of any article under this section, no abatement for deduction shall be allowed except in respect of trade discount and the amount of duty payable at the time of the removal of the article chargeable with duty from the factory or other premises aforesaid." 11. A si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to 1-10-1975. It would appear that if the legislature had so desired, a corresponding retrospective amendment could have been made in old Section 4. Para 29 at page 624 and 625 is reproduced as under:- 29. We now come to the period prior to 1-10-1975. Shri A.K. Jain representing the Department, had argued that even as regards the position before 1-10-1975, when the old Section 4 of the Central Excises and Salt Act was in force, the old Section 47 of the Finance Act, 1982. In this connection he had relied on paragraph 31 of the judgment of the Supreme Court in the Bombay Tyre International Ltd., and their observation that it was not the intention of Parliament, when enacting the new Section 4, to create a scheme materially different from the embodied in the superseded Section 4. We find it difficult to accept this argument. The above mentioned observation of the Supreme Court is certainly a very important one, as indicating that the object and purpose as well as the central principle at the heart of the scheme remained the same. It would not, however, be correct to extend this principle so as to equate the old and the new Sections even where there is a clear difference in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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