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TMI Blog1979 (7) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... involved in each. 2. Petitioner is Public Limited Company with its registered office in Cochin and its factory at Athani near Angamali where it manufactures electric lighting bulbs and fluorescent lighting tubes. These articles are excisable goods falling under Tariff Classification No. 32 (i) and (ii) of the 1st Schedule to the Act. The petitioner sells its products for delivery at the factory gate and also at its several sales depots situated all over India. The price for which the goods are sold to the dealers at the depots include the post-manufacturing expenses such as distribution expense, freight and selling profits. The sale price which is called the list price is uniform all over India, notwithstanding the fact that the selling expenses incurred by way of freight, insurance etc. differ widely depending upon the distance of the sale point from the factory gate which is the place of removal. Before starting commercial production the petitioner assessed the market for electric lamps and tubes and felt that it would be difficult to market its entire production itself. On 6-11-1967 the petitioner entered into an agreement with Messrs, Crompton Greaves Limited (`Cromptons') fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to forbear from collecting differential duty pursuant to the orders. 4. O.P. 5971 is concerned with the quantitative discount disallowed by the authorities for the period 1-7-1970 to 31-3-1971. In the petition besides the terms of the agreement with Cromptons the petitioner has set out the rates of quantity discount allowed to other wholesale purchasers as well. The petitioner submitted its price list as from 1-7-1970 claiming deduction of the discount allowed to the purchasers. The first respondent however approved only 25% in the case of bulbs and 30% on decoration lamps, Ext. P9 dated 28-6-1971 is his order. From this order the petitioner preferred an appeal which was dismissed by the third respondent under Ext. P3 dated 28-10-1974 on the ground that it was barred by limitation. The petitioner preferred an unsuccessful revision before the Government of India challenging the appellate order on the merits and praying for condonation of the delay in filing the appeal Ext. P6 dated 29-8-1975/11-9-1975 is the order in the revision. The petitioner challenges those orders on the same grounds as in the other original petition and asserts that despite the fact that the appeal was st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1977 E.L.T. (J 177) dealing with a similar contention to condemn an agreement between Voltas-the manufacturer and its dealers allowing a trade discount of 22%, the Supreme Court observed that for a wholesale market to exist it was not necessary "that the articles should be sold to so-called independent buyers", that the absence of a physical market would not in any way affect the existence of market in the proper sense of the term provided the articles themselves could be sold. 10. There is no finding and no material to show that the agreement between the petitioner and Cromptons was not at arms length and in the usual course of business or that the trade discount was determined by any extra commercial consideration and not by business exigencies. The two decisions make it clear that the conferment of certain benefits upon Cromptons does not vitiate the trade discount or make them favoured buyers. It is also significant to mention that the petitioner allows similar quantity trade discounts to other wholesale dealers as well. We reject the Central Government Pleader's contention. It follows that the petitioner's case has to be decided in accordance with the principles laid down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, his acts would to that extent be null and void. No one would have any power to call upon a citizen to make payment of a tax so imposed and, if any authority seeks to collect a tax so imposed the citizen can call in aid Article 265, and seek the assistance of this Court." In this view the learned Judges granted the writ. This case was taken on appeal to the Supreme Court - Deputy Commercial Tax Officer v. Rayalaseema Constructions (17 S.T C. 505). It was contended for the appellant that Article 265 did not permit calling in question an assessment that had already become final. After noticing that the provisions purporting to impose sales tax on "works contract" had been declared to be ultra vires by the Supreme Court agreeing with the Madras High Court, the Supreme Court observed that those provisions were therefore void and that "It follows that in the instant case, the Sales Tax Authorities have acted outside the Act in making an assessment on the basis of the relevant part of the charging Section which was declared to be ultra vires by this Court." On this ground the Court dismissed the appeal. 13. The Supreme Court had occasion to notice 17 S.T.C. 505 in a subsequent cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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