9911796707
TMI Blog1984 (3) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... those dated 10th May, 1976, issued by the Superintendent of Central Excise, respondent No. 2, returning the price lists, submitted by the petitioner, for resubmission after necessary revisions in the light of the aforesaid order. The reliefs which the petitioner has asked for; are for issuance of writs of certiorari, prohibition and mandamus for rescission, cancellation, withdrawal and/or quashing of the aforesaid order and letters dated 9th October, 1975, and 10th May, 1976, and also for order of restraint against the respondents from giving any effect to or taking any steps whatsoever in pursuance of and under the impugned order and letters. 2. The petitioner manufactures, inter alia, dry batteries of various types and sizes. For that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position of excise duty, regular trade discount, transport charges and charges for secondary packing were excluded by the petitioner. The transport charges, as mentioned in column 10 of the price lists comprised different figures for different destinations and the petitioner alleges the same to be actual transport charges. 4. As the price lists submitted by the petitioner were approved by the excise authorities subject to inclusion of costs of wooden packing, as and when the goods were cleared in such packing, the petitioner preferred an appeal before the Appellate Collector of Central Excise against the said condition. The said appeal is still pending. 5. By a memo of the Assistant Collector, dated 21st Feb., 1976, the petitioner was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges, as shown by the petitioner, were notional charges based on the concept of the equalised freight, which was proved by the charging of a uniform price of the petitioner's products all over India. The respondents also contested the claim of the deduction of the petitioner of the secondary packing charges and contended that the statutory authority should be permitted to decide the questions raised in the writ application. The propriety of invocation of the writ jurisdiction in view of the existence of disputed questions of fact, needed to be decided, was also raised on behalf of the respondents. 9. It is necessary to mention at this stage that during the pendency of the present rule, the Supreme Court decision in the case of Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner is entitled to a deduction of the costs of transportation of dry batteries from the factory gate to the place or places where those are sold : vide paragraphs 51 and 52 (of E.C.C.) and 49 and 50 (of E.L.T.) of the said decision. Reliance has been placed on the decision of the Bombay High Court in the case of Union Carbide v. Union of India, reported in 1979 E.L.T. 633 to substantiate the contention of the petitioner that Section 4(l)(a) of the Central Excise Act has no manner of application in the facts of the present case. Moreover, in the present case, price lists having been approved and deduction of transport charges having been accepted, the same cannot be allowed to be reopened by the respondents in the manner in which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, however, in his usual fairness conceded that equalised freight is the same as average freight as mentioned in the Supreme Court decision, referred to above, and the impugned order having disallowed transportation charges in its entirety, cannot be supported. In my view, however, the impugned order of the Assistant Collector of Customs dated 17th April, 1976, seeking to reopen the determination of transportation charges, should be quashed as also the letters dated 10th May, 1976, issued by the Superintendent of Central Excise. The petitioner in law is entitled to deduction of transportation charges, be it based on average freight or actual costs of transportation, and the approval to the said deduction having already been given the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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