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TMI Blog1989 (8) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... e already suffered duty of excise. After hearing the objections on a show cause notice dated 18th Feb., 1970 issued by the Range Officer demanding an amount of Rs. 36,548.18. basic excise duty and Rs. 7,309.64 special duty by including the packing charges the Asstt. Collector confirmed the demand. On appeal the Collector remanded the matter for consideration afresh. Thereafter a fresh show cause notice was issued on 13th August, 1973 and the demand was confirmed. The appeal filed by the appellants was dismissed by the Collector. 3. Against the orders of the Collector, the appellants filed a writ petition OP No. 4499/1974 in the High Court of Kerala for quashing the orders of the Collector. They have also inter alia prayed for refund of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a full refund of all excise duty paid on the packing charges. The learned Judge, it was contended, also made it specifically clear that the burden of establishing that the packing charges so far as this case is concerned is liable to suffer excise duty is on the respondents . The counsel further contended that in utter disregard of the above directions the lower authorities confirmed the demands. In spite of the High Court holding that the onus of proof that white cement is capable of being sold without the packing is on the department they have not choosen to adduce any evidence, while they have adduced both oral and documentary evidence in support of their contention that the white cement can be sold at the factory loosely without any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in cases where the order of remand is not otherwise sustainable in law. It is not open to the subordinate court to criticise the order of remand passed by the High Court and refuse to act upon it. The court to which a case is remanded has no jurisdiction to enter into question which fall outside the terms of the remand order. In cases where the High Court decides a question before the order of remand, it is not open to it to revise its decision on the ground that it has turned to be wrong on account of subsequent binding decision of the same court or the Supreme Court. But such findings can be reversed in appeal in cases where an appeal lies from its final decision. A subsequent decision of the High Court or Supreme Court in a different c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt of durable or returnable container is unknown. At any rate there is no evidence of return of bags. In reply Shri George contended that the finding that without containers the cement gets deteriorated is based on no evidence and therefore opposed to the principles of natural justice. 10 Two issues arise for consideration : (i) whether the Asstt. Collector and Collector passed the orders in dispute in utter disregard of the directions issued by the High Court. (ii) whether the packing charges are includible in the assessable value. We may make it clear that the High Court has not given a finding that the packing charges are not includible in the assessable value. On the other hand it is left to the Asstt. Collector to decide whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto consideration all these aspects namely the nature of the product and practice followed by the appellant as well as the other manufacturers in clearing the product and the fact that it gets deteriorated without containers gave a finding that it is incapable of being sold without a packing. When the white cement is always cleared in containers, it is difficult for the Asstt. Collr. to prove that it can be cleared without container. He cannot be expected to prove an impossible situation. 13. In view of the above it is difficult to accept the contention that the authorities have not discharged the onus placed on them and that they have confirmed the demand in utter disregard of the directions of High Court. 14. Therefore, the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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