9911796707
TMI Blog1984 (3) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... inclusion of costs of wooden packings and those dated 10-5-1976, issued by the Superintendent of Central Excise, respondent No. 2. returning the price lists, submitted by the petitioner, for resubmission after necessary revision 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 9-10-1975 and 10-5-1976 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing at the valuation for imposition 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 21-2-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the petitioner, were notional charges based on the concept of the equalised freight, which was proved by 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 India v. Bombay Tyre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the factory gate to the place or places where those are sold (vide paragraphs 49, 50 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 (J) to substantiate the contention of the petitioner that Section 4(1)(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 charge having been accepted, the same cannot be allowed to be reopened by the respondents in the manner in which it has been sought to be done. In this connection, my attention was drawn to Rule 173-C of the Central Excise Rules, which by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 17-4-1976, seeking to reopen the determination of transportation charges, should be quashed as also the letters, dated 10-5-1976, 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 respondents are not empowered to reopen the said determination on the ground that such charges were equalised freight. Rule 173-C of the Central Excise Rules, upon a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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