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TMI Blog1985 (10) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... e inclusive of all labour and material excepting for malleable cast iron inserts and fastenings, which were to be supplied free by the said Railway Board. Clause 6.3 of the aforesaid contract specifically stated that any taxes and duties leviable on the said concrete sleepers from time to time was to be, and is to the said Railway Board's Account. In terms of clause 6.4 of the said contract, the malleable inserts were to be supplied free of cost to the petitioner no. 1. 2. On 1st August, 1981, the respondent no. 2, Superintendent, Customs and Central Excise, Mathura, besides other things, intimated petitioner no. 1 that no documents have been shown so as to know the value of the inserts supplied by the railways which were most essential f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the material which has been filed in this writ petition, it appears that throughout the excise department was pressing the petitioner to disclose the value of inserts and the petitioner was taking the plea that the value of inserts could not be disclosed as despite persistent requests the Railways has not supplied the aforesaid information. It was only on 10th October, 1984 that the General Manager of petitioner no. 1 intimated the Superintendent, Central Excise that the General Manager (Engineering), Northern Railways by his letter, dated 15th September, 1984 has intimated that the value of inserts being used was Rs. 11.90 paise. However, it appears that before the petitioner no. 1 supplied the information regarding the value of the inse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is six months from the relevant date, i.e., the date on which the excise duty was payable under Section 11-A(i) of the Act. We are unable to accept the aforesaid argument as a bare perusal of the show cause notice, dated 16th July, 1985 shows that jurisdiction under Section 11-A of the Act has been assumed as according to the excise department the petitioners were being regularly requested to supply the cost of M.C.I. inserts since July, 1981 to which they have failed and that they have wilfully suppressed the value of the inserts so as to evade the payment of duty. A bare perusal of proviso to Section 11-A of the Act makes it clear that in case the duty of excise has not been levied or paid or has been short-levied and short-paid or erron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Another decided on 26th October, 1984-1985 (20) E.L.T. 60 (AP) = [1985] 4 ECC 165 (AP). Having heard the learned counsel for the petitioner on this question at some length and after perusing the decision given by the Andhra Pradesh High Court in the case of M/s. Mysore Structurals Limited 1985 (20) E.L.T. 60 (AP) = [1985] 4 ECC 165 (AP) (supra). We are of the opinion that the contention raised by the learned counsel for the petitioner has no force and we respectfully differ from the view taken by the Andhra Pradesh High Court in the case of M/s. Mysore Structurals Limited 1985 (20) ELT 60 (AP) = [1985] 4 ECC 165 (AP) (supra). 6. There is no dispute that what is being sold to the railways is mono block concrete sleepers. These concrete s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price of those inserts and fasteners while selling the goods to the railways. The effect would be to set-off the price which the petitioner would have paid for obtaining the inserts and fasteners. At best it could be said to be an arrangement between the manufacturer and the supplied that in case the purchaser supplies some material essential for the finished goods without charging any price on the assurance that the same will be utilised in the finished product and supplied to the purchaser, in such a case the manufacturer will not be entitled to include the price of that item which has been supplied free of cost on the undertaking that the same would be utilised in finished products which were being purchased by the purchaser. In any arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charging the duty of excise. The argument raised, therefore, in our opinion has no force. 7. Before parting, it may be observed that we are not expressing any opinion on the question as to whether the value of the inserts and fasteners which have been taken into account by the excise authorities is correct or not. The petitioners before us have placed material that the railways have informed them that the cost of fasteners is Rs. 11.90 while the excise authorities have taken the cost to be Rs. 40 per insert. Admittedly, the petitioners have a statutory right of appeal, and in case the petitioner wants to challenge the aforesaid part of the order relating to the valuation of the inserts and fasteners, the proper remedy is to file an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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