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TMI Blog1991 (9) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... h sides do not have any objection for disposal of the appeals by a common order. Accordingly the same are being disposed of by this common order. 3. Since the facts are similar, we are giving facts in respect of appeal No. E/208/84-A filed by M/s. Sri Chandra Tobacco Ltd. The appellants had filed a refund claim for Rs. 35,16,300/- and the appellants had challenged the competence of the Central Government in respect of Notification No. 36/83 dated 1-3-83 regarding levy of Central Excise duty on cigarettes. Under item 4 of the list of Schedule 7 of the Constitution of India the said notification provided for levy of Central Excise duty on cigarettes on the basis of maximum sale price marked on cigarettes packs meant for sale. The appellants contended that this notification provide for levy of Central Excise duty on the basis of maximum retail price printed on the cigarettes pack and this was not in confirmity with the provisions of Section 4 of the Central Excises Salt Act, 1944 which provides for levy of central excise duty on the basis of normal price of the goods which are sold in the course of wholesale trade and the appellants had contended that this notification cannot oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and above the provisions of the Section 4 of the Central Excises Salt Act, 1944. However, he fairly stated that this issue is covered against the appellants by a Bombay High Court s decision in the case of M/s. GTC Industries Ltd. v. Union of India reported in 1986 (25) E.L.T. 925 (Bombay). Shri Khaitan further fairly stated that in view of the decision of the Delhi High Court in the case of M/s. J.K. Synthetic Ltd. v. CCE reported in 1985 (21) E.L.T. 410 wherein it has held that it would not be proper for any authorities under the Excise Act to take a different view from that of High Court even if such decision has been appealed against. Shri Khaitan pleaded that GTC being not satisfied with the order passed by a single judge of the Bombay High Court had filed an appeal before the Division Bench of the Bombay High Court which is pending and in case the bench is satisfied the appeals may be kept pending, and he has pleaded for the acceptance of the appeals. 5. Shri V.K. Jain, learned SDR with Shri Satish Kumar, JDR has appeared on behalf of the respondent. Shri Jain pleaded that the Notification No. 36/83-C.E. dated 1st March, 83 is in accordance with law and it has got the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary 1986 has been annexed to this petition as Exhibit D . The appeal was, therefore, dismissed as not pressed. 12. It is clear, therefore, that in previous proceedings the petitioners have contended that the respondents are not entitled to consider any price other than the adjusted sale price mentioned in the notification as the basis for determining the value of the product manufactured by them for the purpose of levying and calculating excise duty. In the proceedings which ended by the order of the Division Bench on 25th February 1986, liberty was given to the petitioners to challenge any final order that may be passed by the respondents an order that would be based upon the stand of the respondents that excise duty could be levied on the basis of valuation other than the one which is mentioned in the notification. Detailed submissions have been incorporated in this petition on what the petitioners regard as the unjust and illegal approach of the respondents by taking into account a factor which is not strictly provided for in the notification issued under Rule 8. What is mentioned in the notification is the adjusted sale price with reference to which excise duty is to be levi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been, and could not probably be, taken to this particular provision. In the second slab which relates to the adjusted sale price per one thousand cigarettes being in excess of Rs. 60 but not in excess of Rs. 170, the effective rate of excise duty has been fixed at Rs. 125 per one thousand. In other words, if the adjusted sale price per one thousand cigarettes as understood in the light of the explanation to the notification is above Rs. 60 but upto Rs. 170 then the excise duty that is payable will be Rs. 125 which means where the cigarettes are sold at the rate of Rs. 61 per one thousand, excise duty payable on the same would be Rs. 125. Similar anomaly is to be found in the third slab also where an effective excise duty of Rs. 225 is to be levied on cigarettes the adjusted sale price of which exceeds Rs. 170 per one thousand but does not exceed Rs. 300. 15. Illustrations of what the petitioners call the absurdities that would result from the application of this notification have been given in paragraph 36 of the petition. It has been contended, and not without justification, that in order to market and sell cigarettes of which the adjusted sale price would, for example, be R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lent to the adjusted sale price. The respondents may, if they so think fit, take action against the petitioners, if there is such provision for action, for making a false declaration if it is proved that the marking of the price on the cigarette packets amounts to a false declaration. 17. These are very interesting and, I would regard, very serious and weighty arguments but, as already mentioned above, that challenge has to be taken by the petitioners pursuant to the liberty given to them in the earlier proceedings against any final order that may be passed. Again, as mentioned above, the show cause notice dated 4th of April, 1986 has not been specifically challenged. No relief has been claimed in the prayer clause against the said show cause notice. This is again, for the obvious reason that the petitioners were allowed to challenge any final order that may be passed in proceedings which includes the issuance of the show cause notice dated 4th of April 1986. It would not be, therefore, correct to consider these various arguments which have been advanced against the action of the respondents which, according to the petitioners, takes into account the retail prices for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the consumer. In so far as this argument is based upon the fact that the respondents are taking into account the actual retail price, the same cannot be considered in this petition. If it is the contention of the petitioners that even if the adjusted sale price is taken into consideration the petitioners will not be in a position to know in advance what excise duty they would have to pay, the said contention is not sustainable. As Mr. Dhanuka, the learned Advocate appearing for the respondents, has rightly pointed out the manufacturers are told in advance what would be the excise duty payable by them for the cigarettes falling within a particular price range. If this is so it is not correct to say that the manufacturers do not know in advance what excise duty they would be called upon to pay. 20. It has next been urged that the action of the respondents in relating the value of the product for the purpose of levy and collection of excise duty to the price mentioned on the cigarettes packets compels the petitioners to fix the retail price. In other words, by an action which is apparently taken under the provisions of the Excise Act the petitioners are being compelled to fix pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.1970, has dealt with the similar points and has come to the conclusion that Polymer chips are not covered under Item 15-A of First Schedule of the Act. A similar contention has been made by the petitioner in the present case that Polymer chips are not covered by Entry 15-A. It is true that technically that decision has been given in a case of another company to which the petitioner in the present case was not a party, yet the judicial propriety would require the authorities under the Act to follow the judgment of the Bombay High Court until it is reserved in appeal and not to take a view different from that of Bombay High Court. If this was permitted this would lead to uncertainty of law as the Tribunals are under the General Superintendence of the High Courts and must follow their decision. If, therefore, the petitioner was to be relegated to seek its remedy before the appellate or the revisional authority only one of the two course could be followed i.e. (i) that the authority under the Act should follow the Bombay High Court decision and give relief to the petitioner or (ii) that the respondent should ignore the judgment of the Bombay High Court and take a contrary view. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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