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TMI Blog1997 (1) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... V on the ground that the distributing agent was only an agent and related person and not an independent buyer and further directed appellant to pay central excise duty as per such price list in Part IV. Price Lists under Part IV were filed under protest and duty paid accordingly. Appellant challenged this decision by way of a Writ Petition, M.P. No. 2673/76 filed on 2-4-1976 in the High Court of Bombay. The High Court on 5-8-1980 quashed the decision of the Assistant Collector and since, in the meanwhile, appellant was paying higher duty as per price list in Part IV, directed the Department to refund the excess amount of duty paid with interest at 6 per cent per annum from 2-4-1976. The Department filed S.L.P. No. 20/73/81 in the Supreme Court. By an interim order dated 2-4-1982, the Supreme Court directed that the amount which became refundable as per the order of the High Court shall be calculated and paid to the appellant within three months on the appellant furnishing Bank Guarantees for the amount. 3. Accordingly, as per order dated 15-6-1982, Rs. 94,23,406.16, inclusive of interest from 2-4-1976 till 31-3-1982 was refunded to the appellant as against the claim of Rs. 1,02,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 14 and 65. We are not satisfied that the Collector (Appeals) considered the matter in all its aspects. It is true that the subject and first paragraph of letter dated 8-10-1975 of the Assistant Collector refers to Synthetic Resins T.I. No. 15A and Paragraphs 1, 2 and the first and second sentence of Paragraph 3 of the letter refer to price list . But the third sentence of Paragraph 3 of the letter states :- The same orders also apply to the price lists filed by the assessee in respect of the other goods manufactured and cleared by the assessee and for which he has filed a price list in Part I of the proforma instead of the Part IV under his abovementioned letter. The letters and word underlined show that the singulars, plurals and prepositions used by the officer have no significance. The letter was issued with reference to price list filed by appellant under letter dated 12-9-1975 and approved by order dated 30-9-1975. A copy of the appellants letter dated 12-9-1975 accompanying the price list refers to it is complete price list . Copy of the price list shows that it is in seven sheets and covers 107 items of T.I. 14D, 13 items of T.I. 14DD and 3 items of T.I. 15A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted from the amount of refund and this contention has been upheld by the High Court of Bombay and the decision of the High Court has been followed by the Tribunal. The High Court of Bombay held so in Roche Products Ltd. v. Union of India, - 1991 (51) E.L.T 238 (BHC) on the ground that there is no provision in Section 4 of the Act to charge duty on the amount of refund and once an erroneous order is set aside, the assessee would be entitled to get the refund. The Court did not consider the aspect that the amount of refund, not passed on to the buyer would be profit or excess amount in the hands of the manufacturer. In Union of India v. Alembic Glass Industries Ltd. - 1992 (61) E.L.T. 193 (Kar. H. C.) decided on 14-12-1990 a Full Bench of the High Court of Karnataka took a contrary view on considering the question of refund claim in the aftermath of the decision in a writ petition that cost of packing was not to be included in the assessable value of excisable goods. The Full Bench held as follows :- Therefore, in a given case, if a manufacturer has charged excise duty on items like value of packing charges which are not chargeable to tax either on account of being compelled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty payable on the goods from the wholesale price because as a matter of fact, no duty has actually been included in the wholesale price. (Emphasis supplied) 9. Appeal No. E/3607/87-A was disposed of by the Tribunal by Final Order No. 3494/96-A, dated 16-10-1996, following the Bata India Ltd. - 1996 (84) E.L.T. 164 (S.C.), and upholding the order of the lower authority directing payment of a part of the refunded amount. In Appeal Nos. E/340/87-A, E/1404/96-A and 1405/96-A, by Final Order Nos. 3513-3515/96-A, dated 30-10-1996, reported in 1997 (18) R.L.T. 99 (Tribunal) the Tribunal held that the duty element on the deductible freight charges has to be added not to the assessable value but to the wholesale price and thereafter assessable value, duty and actual amount to be refunded has to be arrived at, relying on the decision in Alembic Glass - 1992 (61) E.L.T. 193 (Kar. H.C.) and other decisions. See also Final Order No. 3572/96-A, dated 8-11-1996 in Appeal E/3878/87-A. But no reference to the above decision of the High Court of Bombay is made in these decisions. 10. In the case at hand, the High Court held that price list in Part I must be followed and not price lists i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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