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TMI Blog1984 (11) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessable values as declared by the appellants. The approval was to be effective from 1-10-75. 9-8-1976 The Assistant Collector addressed a letter to the appellants stating that the method adopted in arriving at the assessable value was not correct. It set out what according to the Assistant Collector was the correct method. It also showed the net assessable value of each item in the price-list according to the revised method, the value in each case being higher than what had been declared and accepted earlier. The letter added, You are further requested to pay the differential amount as per amended prices for the past clearances . 26-8-1976 The appellants replied to the Assistant Collector s letter requesting to know the basis on which the new values had been worked out, and the relevant provisions of the Central Excises and Salt Act and Rules. 16-10-1976 A show cause notice was issued by the Assistant Collector. It was stated therein that the appellants had removed dyes by declaring less assessable value in their price-list. The basis for this contention Was expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Collector. The subsequent modification of that approval, according to Shri Narasimhan, amounted to a review of the Assistant Collector s order of 6-12-1975. According to Shri Narasimhan, this could not be done by the same or the successor Assistant Collector. The power vested only with the Central Board of Excise and Customs under Section 35A of the Central Excises and Salt Act, or if the provisions of Rule 10 were duly complied with. According to him, these conditions were not satisfied as there was no review by the Board. Nor were the conditions of Rule 10 satisfied, because no show cause notice was issued prior to the Assistant Collector s letter dated 9-8-1976 purporting to revise the approval already accorded. 6. Shri Narasimhan relied on a decision of a Single Judge of the Calcutta High Court in the case of Union Carbide (India) Ltd. v. Assistant Collector of Central Excise, reported in 1984 ECR 1351. In that case the price-lists submitted by the petitioners were approved, accepting the exclusion of transportation charges (an objection was raised in regard to packing charges, but that would not affect the issue here). Subsequently, the Assistant Collector is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessments were made on the RT-12s, on different dates from 1-10-1975. The approval to the price-list was given only on 6-12-1975 and therefore the assessments prior to 6-12-1975 should be taken to be provisional. The assessments made on or after 6-12-1975 were within one year of the date of issue of the show cause notice on 16-10-1976, and therefore the show cause notice was in time. 10. Shri Mahesh Kumar relied on the judgment of a Division Bench of the Delhi High Court in the case of Bawa Potteries v. Union of India and Another, reported in 1981 (8) E.L.T. 114, to contend that the Assistant Collector was in the circumstances of this case fully competent to revise the approval earlier accorded to the price-list. In that case also a price-list was approved by the Assistant Collector and subsequently sought to be revised by the Assistant Collector, on the ground that an erroneous view had been taken in the earlier order of approval. The second Assistant Collector s order was upset by the Appellate Collector in appeal but restored by the Central Government acting under Section 36(2). Against the Central Government s order the petitioners had gone to the Delhi High Court, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave undergone a modification, or if there has been a subsequent pronouncement of a High Court or the Supreme Court which necessitates reconsideration of the issue, there is obvious justification for such action to be taken. None of these factors operated in the present case. However, the judgment gives the authorities some further latitude by indicating that such a decision could be reopened if fresh facts are brought on record, or there is at least a suggestion that while arriving at the earlier conclusion certain material facts or provisions had not been considered, and that if they had been considered a different view might have been taken. Shri Narasimhan argued that the present case would not be covered by these guidelines. We find it difficult to agree with this contention. In this case it could be said that while arriving at the earlier conclusion certain material facts or provisions had not been considered, and that if they had been considered a different view might have been taken. 13. The judgment in the case of Bawa Potteries is also very relevant to this case because the facts of the two cases are quite similar. In that case also a price-list was approved by an A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3C of the Central Excise Rules, upon a proper construction, was intended to give finality to an approved price-list. With great respect to the Hon ble Calcutta High Court, we think that the decision of the Division Bench of the Delhi High Court in the Bawa Potteries case should be followed in preference to the decision of the Single Judge in the Union Carbide case, particularly as the facts of the Bawa Potteries case are very similar to the facts of the present case. 16. The judgment of the Allahabad High Court in the case of Triveni Sheet Glass Works does not help the appellants, and in fact the Calcutta High Court found it necessary to distinguish the case before them from that which was before the Allahabad High Court. 17. We would observe in passing that Rule 173C lays down a detailed procedure to be followed when there is a dispute as to the admissibility of prices declared in a price-list. The provisions however relate mainly to a dispute arising at the time of initial filing of a price-list. Sub-rule (10) makes a reference to an alteration in the price-list, but the context as well as the wording of this sub-rule, which requires the assessee to file a fresh list or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder per contra: M. Gouri Shankar Marthy, Member (J)]. - In my dissenting judgment in 1984 (18) E.L.T. 310 = 1984 ECR 936 (M/s. Entremonde Polycoaters Private Ltd. v. Collector of Central Excise, Puna), I had occasion to hold, on a construction of Rule 173 B of the Rules and after a reference to the case law on the issue and distinguishing the rulings in 1981 (8) E.L.T. 114 (Bawa Potteries v. Union of India) and 1981 (8) E.L.T. 328=1981 ECR 333 (J.K. Synthetics v. Union of India), that :- (a) it is axiomatic in law that a power of review has to be granted expressly or by necessary implication ; and (b) approval of a classification list being quasi-judicial, there can be no question of its review - such power not having been either expressly or by necessary implication conferred under the provisions of the Central Excises and Salt Act, 1944 or the Rules. 21. (a) In 1984 ECR 658 (Nuchem Plastic v. Collector of Central Excise), the Special Bench D of this Tribunal had come to a slightly different conclusion following the aforesaid decisions in 1981 (8) E.L.T. 114 and 1981 ECR 333. The conditions requisite for a review in terms of the said decision are : (i) the process o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision reviewed. 23. (A) Once this were so, it becomes necessary to examine if a power of review of a price list or for the matter of that, a classification list as well, approved earlier, had been conferred, either expressly or by necessary implication in terms of any other provision applicable for the period in question. (B) (i) Reliance is placed on the cases reported in 1981 (8) E.L.T. 114 (supra) and 1981 ECR 333 (supra) to deduce a power of review of an approval given earlier to a price-list, in Rule 10 as it read at the material time. (ii) In 1981 (8) E.L.T. 114, a price-list in which certain deductions from the price were claimed for a determination of the assessable value, was not approved in 1962, even though earlier, price lists claiming the same deductions were approved. On a remand from the High Court, the Assistant Collector, predetermined the assessable value, permitted some of the deductions claimed and allowed a refund of duty in a sum of ₹ 3,41,000 for the period between 1961 to 1966 paid earlier. Amongst such deduction allowed was the one relating to a uniform deduction at the rate of 10% for breakages. This was in October, 1973. After the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that duty would be continued to be collected on a basis other than that approved finally in the Revision proceedings. In a writ petition for enforcing a refund of the amounts collected in excess earlier and for directions for assessment on an appropriate basis, it was held that, notwithstanding the axiomatic rule that the principles of res judicata and estoppel are inapplicable to tax cases, a decision in assessment is not to be departed from capriciously but for good and cogent reasons. There should be - (a) fresh facts ; or (b) change in the law ; or (c) a failure to notice material facts or considerations, to warrant any departure from the decision of the Central Government in Revision. In the facts of that case, it was concluded in the aforesaid decision that it was not open to the Excise authorities to take a different view without any valid reasons. It was further observed that it is not as if the Excise authorities were without any remedy other than a review in a case of an erroneous decision earlier. It was specifically indicated that it was open to the higher authorities to exercise their powers of revision or review under the Act. But if this has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short-levy or an erroneous refund does not, in my opinion, extend to a reconsideration of an approval previously accorded to a Classification List or a Price List. Although such approval was quasi-judicial, it is an act that precedes the assessment, and if it is only the order in assessment that could be reviewed, obviously, there could be no review of a quasi-judicial act prior to such assessment. (f) If it were otherwise, and a power of review of an approval accorded to a Classification or Price List earlier was implicit in Rule 10, the terminus a quo for the period of limitation-namely the date of payment or adjustment of duty or grant of refund-was meaningless. The approval in such a case precedes the date of payment or adjustment of duty or grant of refund. The commencement of a period of limitation in Rule 10 is not relatable to the date where an approval was originally granted-which would have been the case, if, in terms thereof, a power of review had, indeed, been granted. (g) This does not mean that the Revenue are stuck with an erroneous approval without any remedy for rectification or modification. It could have been effected by the Collector by way of revision un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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