9911796707
TMI Blog2013 (3) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee at the time of clearance of goods from factory gate even for those goods which are sold through depot and the duty shall be levied at the price declared at depot. The petitioner has also challenged the vires of Section 4(4)(b)(iii) inserted by Section 74 of the Finance Act, 1996 as illegal and ultra vires of Entry 84 of List-I of Seventh Schedule of Constitution as, according to the petitioner, the said Entry No. 84 authorizes and gives power for levy of imposition of duty on goods manufactured or produced in India and on the basis of said Entry. It has been contended that said provision is ultra vires of the charging Section i.e., Section 3 of the Act. 3. The brief facts of the case are that, the petitioner is having it's factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty can be levied in addition to the gate of the factory premises, impugned notification dated 24th July, 1996 may have been issued, declaring that by virtue of this amendment the assessee shall be required to pay the excise duty of freight charges, as now the factory gate is not the actual place of removal and since the definition of the place of charging has been extended to the depot also, therefore, excise duty will be price of the goods at depot. 4. The learned counsel for the petitioner submitted that the Hon'ble Supreme Court in the case of Union of India v. Bombay Tyres International Ltd. (supra) considered various aspects of the matter, including the scope and definition of the transportation charges to the depot and thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivered, subsequent to the filing of the writ application, the writ petition is liable to be allowed as issue is no more res integra, in view of the Hon'ble Supreme Court judgment. 5. Learned counsel for the Revenue submitted that in view of the amendment made in Section 4(1)(a) by insertion of clause (i-a), it is clear that Excise duty which was chargeable at factory gate stands amended by statutory provision making it clear that the place of delivery will be not treated as only factory gate but shall be by deeming clause be the depot. Therefore, the nature of the cost incurred upto the place of delivery which is the place of removal is the production of the cost for the purpose of sale and consequently liable for excise duty. 6. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturer or should be represented by entire wholesale price charged by the manufacturer. The Hon'ble Supreme Court observed that wholesale price actually charged by the manufacturer consists of not merely his manufacturing cost and his manufacturing profit but includes, in addition, a whole range of expenses and an element of profit, which is known as "post-manufacturing expenses" and "post manufacturing profit" which arises between the completion of manufacturing process at the point of sale by the manufacturer. The Hon'ble Supreme Court at Para-13 of the abovementioned judgment held that while the levy is on the manufacture or production of goods, the stage of collection need not in point of time synchronize with the completion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded in the wholesale cash price so that the wholesale cash price at any place or places outside the factory gate is the same as the wholesale cash price at the factory gate, the averaged freight included in such wholesale cash price has to be deducted in order to arrive at the real wholesale cash price at the factory gate and no excise duty can be charged on it. 7. Since the Revenue is claiming that the insertion of Clause (i-a) after Clause (a) of sub-section (1) of Section 4 whereby, by deeming clause the place of removal has been changed, therefore, according to the Revenue, the notification impugned is in consonance with the amendment and is making only the legal position clear and, therefore, rightly held that after the amendment tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. In view of the above reason, when there is statutory provision, any order or circular cannot nullify that statutory provision. We are of the considered opinion that the Trade Notice No. 19/96 dated 24th July, 1996 issued by Commissioner of Central Excise & Customs, Jamshedpur is illegal and contrary to the statutory provisions of Section 4(2) of the Act of 1944 and runs contrary to the law laid down by the Hon'ble Supreme Court. Therefore, the writ petition of the petitioner deserves to be allowed on this Count. 10. Hence the writ petition is allowed and the Trade Notice No. 19/96 dated 24th July, 1996 is quashed. 11. We are making it clear that this Court already passed the interim order dated 16th December, 1997, directing the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
