9911796707
TMI Blog1987 (9) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Central Excises and Salt Act, 1944 the excise duty was levied for the first time on aerated waters with effect from 1st March, 1970 when new Item 1-D was introduced in the First Schedule to the said Act. Thereafter the Assistant Collector, Central Excise, Bombay Division IV, called upon the plaintiffs to file a price-list of the products manufactured by the plaintiffs. Thereupon the plaintiffs furnished the necessary price lists from time to time. The price lists furnished by the plaintiffs mentioned that the plaintiffs were supplying their products to the wholesale dealers through the plaintiffs' salesmen in the plaintiffs' trucks and that no discount or commission was being paid by the plaintiffs to the wholesale dealers. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed issues Nos. 1 and 2, which deal with the suit being barred by section 40(1) of the Central Excises and Salt Act, 1944 and the claim being not covered by Rule 11 of the Central Excise Rules, 1944. The parties have also agreed that in the event of the plaintiffs succeeding in the suit in respect of either the entire claim or a part of the claim, the claim should be referred to the Assistant Collector of Central Excise, Divn, G-I, Bombay for determination of the exact amount of central excise duty to be returned to the plaintiffs. In view of this agreement, there are no disputed questions of fact in the present suit. The remaining issues relate to the question whether the suit of plaintiffs is barred by the law of limitation; whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of mistake of law. 6. In the case of Golden Tobacco Co. Ltd. v. Union of India , reported in 1983 E.L.T. 2238 (Bom.) Madon, J. (as he then was) dealt with a similar contention raised before him. I respectfully agree with his conclusions. He has observed (vide para 20) that the controversy between the parties in 'Voltas' case was not directly concerned with transport charges. In that case the manufacturers were charging two prices, one in respect of direct sales to the consumers and the other to their distributors. The question was which of the prices should be taken for the purpose of determination of assessable value of the goods manufactured by Voltas. There was no question of any deduction of post-manufacturing expenses to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled this suit to recover excess duty paid for a period of three years prior to the date of the suit i.e. within 3 years of payment, as money received by the defendants without the authority of law. The claim for the period 31st May, 1973 to July 1973 has been included because the plaintiffs were required to give two months' notice under section 80 of the Code of Civil Procedure for filing the present suit. Hence it is not disputed that they are entitled to make a claim for this additional period of two months over and above the period of three years. Under Art. 115 of the Limitation Act, 1963 the plaintiffs are entitled to file a suit within a period of 3 years from the date of payment for recovery of the amount so paid. The entire cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh price has to be deducted in order to arrive at real wholesale cash price at the factory gate. See in this connection Union of India v. Bombay Tyre International Ltd., (supra). In the present case also the wholesale cash price of the plaintiffs at places other than the factory gate is the same as their wholesale cash price at the factory gate. The plaintiffs have also thus included in their wholesale cash price the average freight. The plaintiffs have annexed to the plaint certificates given by their charted accountants which include, inter alia, transport charges for each relevant year. In the particulars of claim at Exh. H. they have mentioned transport charges per case in respect of various claims which are included in Exh. H. On the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case and in the interest of justice it would be just and fair to award to the petitioners interest at the rate 12% per annum from the date the duty was collected till payment. 12. The issues are answered as follows : 13. There will be a decree in favour of the plaintiffs and against the defendants for payment to the plaintiffs of excise duty collected on the cost of transportation of the plaintiffs' goods from their factory to the premises of the wholesale dealers for the period 31st May, 1973 to 7th January, 1975 together with interest thereon at the rate of 12% per annum from the date of collection of duty till payment and costs of the suit. By consent, the quantum of such excess duty collected to be determined by the Assistant Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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