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TMI Blog1974 (9) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... discount of 41.24% and 22.5% were allowed in respect of the said coated abrasives and grinding wheels respectively. The petitioner also sells its products directly to consumers and such sales comprise 68% of its products. It also stated in the petition that approximately 38% of such manufactured goods were sold to the wholesale dealers of distributors. For the first time the said coated abrasives and grinding wheels were made excisable goods by adding as Item No. 51 by Notification issued on May 29, 1971 within the purview of Central Excises and Salt Act, 1944. By the said Notification 10% ad valorem excise duty on the said two categories of goods was levied under the Finance Act of 1971 in as much as the said goods were manufactured with the aid of power. Since the introduction of the levy of excise duty the excise department has been levying and collecting the said duty on the gross price of the manufactured goods pending final assessment. On December 16, 1971 the Assistant Collector of Excise assessed the petitioner's products for the levy of the excise duty in the following way :- (a) abrasive sheets item gross price less 12% trade discount less 3% cash discount under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her matters that is Messrs. Electric Lamp Manufacturers (India) Ltd. v. Collector of Central Excise, Calcutta and Orissa and others [1978 E.L.T. (J 84)] and also Dunlop (India) Ltd. v. Collector of Central Excise, West Bengal and others (Matter No. 117 of 1973) and East Anglia Plastics Ltd. v. Collector of Central Excise (Matter No. 158 of 1973) I have delivered three judgments to day where after discussing the legal affects of Section 4 of the said Excise Act and Rules framed thereunder in the light of the principles of law laid down in the said Supreme Court decision and other decisions of the Judicial Committee and the High Court. I discharged the Rules subject to some directions. The Counsel for the petitioner in the instant case has adopted the argument made on behalf of the petitioner manufacturer in these cases but have added that the facts of this case are distinguishable from the facts in the other three matters. He has also made some additional submissions on the impugned orders of assessment. It is not necessary to reiterate the views which I have already expressed by me in the said three judgments. 5. Mr. Saraf Counsel for the petitioner has submitted that similar to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aiming refund under Section 72 of the Indian Contract Act. Relying upon Sales Tax Officer v. Kanahaniya Lal, AIR 1959 SC, 135 he had submitted that the excess amount paid under common mistake of law should be refunded by the respondents inasmuch as the determination of the wholesale cash price for the relevant period has been made contrary to and in violation of Section 4 of the said Excises Act as construed by the Supreme Court in the Voltas case. 7. Mr. T.K. Bose with the learned Advocate General for the respondents has submitted that the principles laid down in the Voltas case have no application to the facts of the present case. According to him in this case the petitioner has already made an application for refund of the alleged excess duty paid by the petitioner. He has suggested that this Rule can be disposed of with a direction that the Excise Officers will decide the petitioner's application for refund in accordance with law. 8. As stated earlier in my judgments delivered in three matters set out earlier I have made the following inter alia decisions :- (1) The Excise Officers have jurisdiction to levy duty on the wholesale cash price of the products of the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding in the wholesale cash price the selling profits is not also warranted in law. The principles of law laid down in the Voltas case are only the confirmations of the principles of law laid down as early as 1932 when the Judicial Committee held that under Section 30A of the Sea Customs Act, 1878 which are substantially analogous to Section 4(a) of the said Excises Act post-importation expenses should not be included in determination of customs duty. Further, there is no question of any error of law inasmuch as Section 4 of the said Excises Act was enforced since 1944 and it was assessees duty to make out a case before the Excise Officers that the Excise duty should only be leviable on manufacturing cost and manufacturing profits. It was not unnatural or unreasonable for the Excise Officers to accept the value of the manufactured goods and the leviable duty suggested by the assesee on the belief that such price did not include post-manufacturing costs and profits of the manufacturing company. The Excise Officers, in these circumstances cannot be said to have committed any error of law also. The petitioners contention that the value shown in their statements and the leviable excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for refund has been made by the petitioner in June, 1972. It also appears that in the letter dated December 27, 1972 the petitioner also has claimed for refund of the total sum paid by the petitioner since May 29, 1971 when for the first time the Excise duty is to be levied upon the product of the petitioner company. Further according to him Rule 11 read with Rule 173J on a proper construction means that application for refund should have to be made within one year from the date of payment or adjustment against the current account or the personal ledger Account of the petitioner under the Self Removal Scheme. This adjustment according to Mr. Bose has been made every month and as the petitioner has not made any application for refund within one month from such adjustment for the purpose of clearance of petitioners goods the petitioners application for refund is barred by the special period of limitation under the said Excise Rules. In my view this contention of Mr. Bose cannot be accepted. It appears from the record that the petitioner has submitted statement regarding price list in accordance with the statutory form for the period from 29-5-1971 to 16-12-1971. But the orders of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atification by shareholders of this company in their General meeting. You are forbidden to canvass business from any another area controlled by our other agents .........Prices will be charged as ruling at the time of the despatches.............. In case of price revision, debit or credit rates as the case may be will be issued on only stocks held by you as on the date of price revision trade price different ..........on supplies made to your Delhi office we shall draw our Bills through Bank of 75 days D/A basis for supplies made to your Branch Office. Bills will be drawn on the respective offices of 60 days D/A basis : our present delivery time if 12/14 weeks and orders should be placed well in advance for arranging timely deliveries." "Direct supplies made by us to the Government department under the D.G.S.A.D. rate Contract will be outside the purview of this agreement." 11. The agreement of distributorship with Messrs. Crystal Company at New Delhi in July 1 (year not mentioned) and also similar agreement with Messrs. S.G. Trivedi of Bombay dated July 16, 1971 (Annexure A to the petition show clearly that the distributors are not buyers of the petitioner company but are only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s artificial and synthetic resin falling under Item No. 15A of the First Schedule to the said Excise Act in its said factory on which the excise duty is leviable @ 40% ad valorem during the relevant period (para 5 of the counter Affidavit of Mr. Sen). In para 8 of the said counter Affidavit it is also stated that the petitioner company during the period from May, 1971 to July, 1972 was under the charge of the Superintendent of Central Excise, Calcutta, V Division and from August, 1972 under the charge of Central Excise, Calcutta, Xl Division. In paragraphs 13B and 13C of the said Affidavit it is stated that the petitioner company submitted the price list to the Excise Department and they also assessed ad valorem in the said list for approval of the same. In fact they also submitted amended price list from time to time under Rule 173C(3) of the said Excise Rules. This approved price list do not show any manufacturing or post-manufacturing expenses. As stated earlier the petitioner also determined the leviable duty under Rule 173B(2) read with Rule 173C. The said price list has been declared and certified as correct by the petitioner itself on January 21, 1973 (Annexure A). Further t ..... 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