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TMI Blog1985 (3) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... quested us to dispose of the matter finally at the admission stage itself and this is why we are proceeding to do so. BACKGROUND 2. The Glass Works has a factory at Bamrauli in the district of Allahabad wherein it manufactures articles like wind screens, door screens, back screens, etc., for motor vehicles and also mirrors. This is being done under a licence obtained by the Glass Works for its factory at Bamrauli. The case of the Glass Works is that normally it sells these goods to buyers in the course of wholesale trade at the factory premises at Bamrauli and also from its depots at various places in the country to which it transports its goods for sale from the factory. The wholesale prices at which sales are made at the factory premises differ widely from prices at which sales are made at various wholesale depots for a variety of reasons inherent in the nature of the articles which are manufactured and sold by the Glass Works. These goods are not excisable articles, but the dispute in that regard is not the subject matter of the present petition wherein the Glass Works has come to this court for redress on the assumption that these goods are subject to levy of Excise Duty un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in such manner as may be prescribed. (2) Where, in relation to any excisable goods the price thereof delivery at the place of removal is not known and the value thereof is determined with reference to the price for delivery at a place other than the place of removal, the cost of transportation from the place of removal to the place of delivery shall be excluded from such price. (3) The provisions of this section shall not apply in respect of any excisable goods, for which a tariff value has been fixed under sub-section (2) of Section 3. (4) For the purpose of this section, - (a) * * * * (b) "place of removal" means - (i) a factory or any other place or premises of production or manufacture of the excisable goods; or (ii) a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty, from where such goods are removed ; (c) * * * * (d) * * * * (e) * * * * 4. The case of the Glass Works, which has not been disputed before us, has been that the classification lists which it had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Rules) to require production etc. of documents or tender evidence says that : (9) The Proper Officer may, where he considers it necessary during the course of any enquiry in connection with a price list submitted by an assessee, - (a) require any person to produce or deliver any document or thing relevant to the enquiry; and (b) examine any person acquainted with the facts and circumstances of the particulars shown in the price-list. 7. Section 35 says that : "35. Appeals. - (1) Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the rules made thereunder (not being an order passed under Section 35A) may, within three months from the date of such decision or order, appeal therefrom to the (Central Board of Excise Customs as constituted under the Central Boards of Revenue Act, 1963), or, in such cases as the Central Government directs, to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf by the Central Government. Such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is not in doubt and has not been characterised as such even by Shri Dhawan. What he, however, says is that it is an `order' passed by the Assistant Collector and is consequently appealable under Section 35. We have considered the submission with the seriousness it deserves, but we find it difficult to accept it. We find in Chapter VI, in which Section 35 occurs, a set of provisions relating to adjudication of confiscations and penalty which includes provisions for appeals and revisions. When we look at Section 35 itself we find that the word `order' seems to have been used in the sense of an order in enforcement of a decision. This is clear when we read the provision to Section 35 laying down that no order passed in appeal confirming, altering or annulling the decision or order appealed against shall be such as will have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order. And, sub-section (2) of Section 35 makes an order passed in appeal final subject to one passed in revision under Section 36 by the Central Board. The nature of the order which admits of an appeal or can be passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Glass Works had an alternative remedy under the Act which dis-entitled it from approaching this Court under Article 226 of the Constitution in the first instance. THE REAL QUESTION 13. Under Section 4, the value of the excisable goods for purposes of charging duty of excise is to be, where the case is covered by clause (a) of sub-section (1), the normal price thereof as mentioned in that clause where it is ascertainable but when it is not ascertainable its determination is to be made under clause (b) of sub-section (1) in the manner prescribed by the Rules. In that case, the determination would now be made under the Central Excise (Valuation) Rules, 1975. The legal position in this respect has been clearly laid down by the Supreme Court in the Union of India and others etc. v. Bombay Tyre International Limited and others - 1984 E.L.T. 1896 = A.I.R. 1984 S.C. 420. Their Lordships examined the provisions of the Act and the Rules and a number of their earlier decisions and observed, inter-alia (in paragraph 48 of the Report) that : "From what has gone before, we consider that the true position under the Central Excises and Salt Act, 1944 as amended by Act XXII of 1973 can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and if a demand for production of material unrelated to the requirement of clause (a) is made, the authority making the demand can be restrained from doing so. 15. A copy of the summons under Section 14 in the present case is annexure "T" to the writ petition and it requires the Glass Works to produce the documents mentioned in the schedule to the summons which has been extracted earlier in this judgment. A perusal of the documents mentioned in the schedule would show that wholesale demand for production of a large number of documents, which can possibly have no relevance to the approval of the price list No. 12/84-G, dated 13-4-1984 effective from 16-4-1984 when we keep in mind the admitted position that the classification lists which the Glass Works had been submitting for the past several years and even the list dated April 13, 1984 were all for determination of the price under Section 4(1)(a), was made by the Assistant Collector. This obviously is not permissible in law. For example, value of goods transacted through Branch Offices cannot be said, by any stretch of imagination, to have relevance for determination of the price under clause (a) of Section (4)(1) where the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words "six months", the words "five years" were substituted. Explanation:- Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the cast may be. (2) ....... (3) ....... 18. Without going into the validity or otherwise of this submission we may observe in passing that proceedings under Section 11A may be initiated against any assessee only upon existence of the conditions precedent therefor and the authority under the Act cannot be permitted, as it were, to collect material for its initiation by directing wholesale production of documents and making a roving and fishing enquiry for the purpose. After all, the provisions of the Act including Section 14, are meant to be administered fairly with a view to ensure the interest of the revenue but without causing unnecess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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