9911796707
TMI Blog2005 (3) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... ith effect from 1st October,1975 the petitioner company filed various price lists declaring the price which was charged by the petitioner company to the wholesale dealers. In the price list so filed by the petitioner company the following items were deducted while computing the selling price, as being post manufacturing costs/expenses which would not form part of assessable value of the product; a) Freight b) Marine Insurance c) Advertising and Sales Promotion d) Sales-depot expenses e) Central Sales Tax f) Royalty g) Packing expenses incurred on behalf of the buyers of the display box included in the price, and h) Interest. The price lists filed by the petitioner were accompanied by Certificate from the Chartered Accountant certifying that the aforesaid elements were items of post manufacturing expenses, but as the price lists were not cleared /approved by the respondent authorities, the petitioner company sought provisional clearance under Rule 9B of the Central Excise Rules, 1944 (the Rules). On the condition that the petitioner company executed a bond accompanied by the bank guarantee provisional assessment was framed and the petitioner permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties will give reasons for disallowing any one or more of the items of deductions allowing any one or more of the items of deductions or claims made by the assessee. (d) The assessment will be finalised on the basis of the determination made by the authorities and the quantum of the final assessed figures will be indicated in the decision of the assessing authority. The final assessment orders will include set-off in respect of refunds allowable and/or allowed to the assessee. 5 It is the case of the petitioner that accordingly the petitioner filed amended/revised price lists for the period 30th June,1974 to 31st December,1986. Respondent No.2 issued a show cause notice on 11th February, 1988 calling upon the petitioner to explain why the following items should not be held to be inadmissible. (a) Royalty. (b) Interest on average stock of finished goods at depot and in transit. (c) Interest on receivable. (d) Interest @ 1.5% as your prices are wholesale credit prices. In the said notice respondent No.2 also called upon the petitioner to show cause why the following two items should not be disallowed considering that the said items had not been claimed prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereto) to quash and set aside the same in so far as the claims for deductions has been disallowed and duty is sought to be recovered; (b) that this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ order or direction under Article 226 of the Constitution of India, ordering and directing the Respondents, their officers, subordinates, servants and agents; (i) to forthwith withdraw and cancel the impugned order dated 25th May 1988 (Exhibit 'J' hereto) and (ii) to forbear from taking any further action in implementation thereof in so far as the claims for deductions has been isallowed and duty is sought to be recovered; (c) (i) that pending the hearing and final disposal of this petition, the Respondents by themselves, their officers, subordinates, servants and agents be restrained by an order and injunction of this Hon'ble Court from taking any steps in furtherance or implementation of the impugned Order dated 25-5-1988 (Exhibit 'J' hereto) disallowing the claims for deduction and seeking to recover duty; (ii) pending the hearing and final disposal of the petition the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity the petitioner accepted the fact that royalty and interest on average stock of finished goods at depot had to be disallowed in light of the ratio laid down by the Apex Court in case of Madras Rubber Factory (supra). Similarly in so far as interest on receivable goods from CSD and DGS D was concerned the same had to be allowed as deduction in light of the ratio in case of Madras Rubber Factory (supra). 8.3 In so far as the remaining three items are concerned, viz. interest at 1.5% per month as prices are wholesale credit price (prior to 8.3.77), Trade Discount (prior to 5.3.86), and Additional Cash Discount (Prior to 1.8.1980) it was submitted that respondent No.2 had disallowed the said items without any rational basis, as in principle respondent No.2 had granted deduction of the said items for the periods falling before the dates specified. That the only reason advanced by respondent No.2 was that the price lists originally filed did not show that deduction of the respective item was claimed in the price list filed prior to the respective dates specified, but once this Court had quashed and set aside the final assessment restoring the matter for fresh adjudication, the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reasoning does not merit acceptance for the following reasons. 13 As can be seen from the directions issued by this Court after quashing and setting aside the original final assessment order the concerned authority was directed to re-examine the grievance of the petitioner in light of various decisions of the Supreme Court and other relevant case laws. That for doing so the authority was directed to permit the assessee to submit its statement of deductions/amendments in respect of price lists already filed for proper determination of excise duty liability, taking into account the deductions that are permissible under judgments and orders of the Supreme Court together with further claims, deductions or heads of expenditure beyond those dealt with in the judgments and orders of the Supreme Court, if otherwise permissible. This direction made on 30th September,1987 makes it clear that not only were the petitioners entitled to file the statement of deductions/amendments in respect of price lists already filed but also make further claims for deductions or heads of expenditure beyond those dealt with by the Supreme Court in the judgments and orders in the decisions referred to by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these circumstances, the averments made in the reply affidavit cannot be treated to be making a statement in consonance with the impugned order and have to be disregarded. 16 In the circumstances, the reason for disallowing interest at 1.5% as prices are wholesale prices prior to 8th March,1977, trade discount prior to 5th March,1986 and additional cash discount prior to 1st August,1980 is not tenable in law or on facts and in absence of any rational behind such disallowance the same is held to be bad in law and the final assessment made on 25 th May,1988 is quashed and set aside to the said extent. 17 In the result, the final assessment made on 25 th May,1988 is upheld in relation to the items of royalty and interest on average stock of finished goods at depot while the same is quashed and set aside to the extent of items being [1] Interest at 1.5% per month as prices are wholesale price (prior to 8.3.77) ₹ 84,072/-, [2] Trade discount (prior to 5.3.86) ₹ 98,97,770/-, [3] Additional Cash Discount (prior to 1.8.80) ₹ 1,83,550/-,[4] Interest on receivable goods from C.S.D. D.G.S. D. The respondent authorities are directed not to raise demand on ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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