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TMI Blog1987 (2) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... the reverse of the price lists. The appellant company had also been submitting R.T. 12s during this period. Neither the price lists were approved by the Department nor were any assessments made on R.T. 12 by the proper officer till a show cause notice was issued on 3rd July, 1976 asking the appellant company as to why the charges recovered by it from its customers towards packing and delivery be not included in the value of the goods and why differential duty be not demanded under Rule 10-A of the Rules. 2. Learned Advocate for the appellant company has made the following submissions :- (1) The question of correct assessable value of the goods manufactured by the appellant company has already been decided by the High Court of Allahabad in its judgement dated 14-5-1974. The writ petition filed in the said High Court was allowed by it with costs and the Hon ble High Court held that the price declared by the appellant company in its price lists was the assessable value of the appellant company s products for the purposes of duty of central excise and that the transaction between the appellant company and its customers were at arms length. The learned Advocate has submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Central Excise (Appeals), New Delhi in April, 1976. The learned Appellate Collector of Central Excise after making a number of observations remanded the case to the Superintendent for passing a fresh order in the light of the various points raised by the Appellate Collector in his order. The learned Advocate asserts that neither any fresh hearing was given by the learned Superintendent nor any order on such remand by the Appellate Collector has been passed to-date by the said Superintendent; instead a notice dated 3-7-1976 for demand of duty was issued by the Superintendent under Rule 10-A. The Superintendent has held while confirming the demand, in his order dated 26-8-1976 that (a) the appellant never sought provisional assessment under Rule 9-B; nor was any such assessment allowed by the Department and (b) the Department was awaiting the result of writ petition. The learned advocate has submitted that the writ petition had been decided as early as 14-5-1974 and the notice under Rule 10-A had been issued after more than 2 years of the decision of the High Court. Non-approval of price lists or non-assessment of duty on R.T. 12s submitted by the appellant company fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 173-C and 173-I. (4) Next plea of the learned Counsel is that in the facts and circumstances of this case Rule 10 only applies Rule 10-A, being a residuary provision for recovery of any duty or shortlevy cannot apply as has been held by Supreme Court in a number of decisions. Elaborating this plea the learned Advocate has submitted that the declaration of value in the price lists submitted by the appellant company could be termed a mis-statement of value inasmuch as the appellant company did not include the packing and delivery charges recovered by it as stated on the reverse of the price lists or in any case it was a mis-construction of High Court s decision dated 14-5-1974 on the part of the Superintendent as has been held by him in his order leading to this appeal that the department was awaiting High Court s order on the writ petition filed by the appellant company. He also drew attention to the fact of High Court s interim order on its writ petition which spoke not only of staying the demand of duty for the earlier period but also spoke of the future assessments. According to the interim order issued by the said High Court the respondents (the Department) were at liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicata applies to issues directly or substantially in issue as has been upheld in AIR 1976 S.C. 1645. In the instant case the learned SDR has pointed out that the issue before the Hon ble High Court of Allahabad was whether the price charged by the customer companies of the appellant would form the basis of the assessable value or the price charged by the appellant from its customer companies. Since the Department held the former point of view it could not have any ground, in the context of the aforesaid controversy, to say that the price of the goods should include the value of packing or not inasmuch on the Department s contention the price charged by the customer companies would have automatically, inter alia, included the price of packing as well. (2) Next contention of the learned SDR is that collection of duty in the circumstances of the case referred to above should be deemed to be provisional assessments as has been held by the Appellate Collector in the impugned order. Payment of duty by the appellant without approval of price lists or without assessment of R.T. 12s cannot be termed an assessment. It was merely in the nature of a provisional collection of duty. Rati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eak of mis-construction of the provisions of law. It cannot mean misconstruction of High Court s interim order. In any case it is the admitted fact that no demands of duty were raised by the department and the appellant company had been furnishing Bank guarantees on its own in terms of the High Court s interim order. In the absence of any demands or assessment applicability of Rule 10 does not survive. Learned SDR also raised certain pleas on merits that packing in the instant cases are not of secondary and special packing or that the so-called special or secondary packing is a packing necessary for delivering the goods in the course of wholesale trade at the factory gate itself and that this packing is not meant for merely safe transit or transportation of the goods. 4. After the arguments had concluded the Bench observed that the appellant had merely furnished a copy of High Court s order dated 14-5-1974; it had not submitted copies of the writ petition, the counter affidavit filed by the Department and the rejoinder of the appellant filed to the said counter affidavit. The appellant was, therefore, directed to file those documents as well so that its plea of res-judicata cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is dated 5-4-1973 when the disputed period in this appeal w.e.f. 15-3-1973 had already began. One of the pleas now taken up by the learned SDR is that the appellant has not supplied the copies of the price lists enclosed with the writ petition and therefore, the High Court s order to the effect that the price charged by the petitioner company from its customer companies would be the wholesale cash price in terms of Section 4 of the Act would include the price towards packing and delivery charges recovered by the appellant does not appear to be correct. It is no doubt true that for a greater and better appreciation the copy of the price list enclosed with the writ petition should have had been enclosed by the appellant while forwarding the copies of the writ petitions, department s counter-affidavit and its own rejoinder to the said counter-affidavit but mere absence of the copy of the price list enclosed with a copy of the writ petition does not prevent the Bench from making inference from the other material available on record. It is clear from para 15 of the petitioner companies rejoinder when it asserts, inter alia as follows :- The price being charged by the petitioner co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 1973 (31) STC 64 (MP) and AIR 1976 S.C. 1645 are not relevant authorities on the question of applicability of the principles of constructive res-judicata decided in a writ petition. Learned SDR s reliance, however, on Supreme Court s judgement in the case of Amalgamated Coal Fields Ltd. v. Janpada Chhindwara prima facie appears to be relevant. We, however, observe that this ruling has been overruled by the Hon ble Supreme Court in its subsequent decision reported in AIR 1965 S.C. 1150 which has been referred to in the citation namely AIR 1977 S.C. 1680 relied upon by the learned Counsel for the appellant. It is clearly held in this authority that the principle of constructive res-judicata enshrined in Explanation IV to Section 11 of the CPC is clearly applicable to decisions in the writ petition filed under Article 32 or Article 226. The law declared by the Supreme Court in its earlier judgment in Devilal Modi s case AIR 1965 S.C. 1150 was quoted with approval in the citation relied upon by the learned Advocate for the appellant, namely AIR 1977 S.C. 1680. That quotation is reproduced below :- This rule postulates that if a plea could have been taken by a party in a proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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