9911796707
TMI Blog1991 (4) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... s and Electricals Limited (hereinafter referred to as 'Peico Limited') conform to I.S.I. specifications and are manufactured with its own technical know-how. The production of batteries is under the exclusive control and supervision of the petitioner and M/s. Peico Limited has no interference with the working of the petitioner company. M/s. Peico Limited, as is stated, has no financial involvement nor any control over the policies of the petitioner or over its operation of manufacture of batteries. Only an order is placed by M/s. Peico Limited for the purchase of dry cell batteries from the petitioner giving certain specification of the product. Petitioner alone brands the batteries as per the requirement of the buyer. M/s. Peico Limited has a right to reject the goods which fall short of agreed specification. It is further made out that M/s. Peico Limited is neither favoured buyer nor is a related person by any stretch of imagination with the petitioner company. The sale made to M/s. Peico Limited is in the usual course of business and price at which the batteries are sold to M/s. Peico Limited is at a normal price and it is the sole consideration while transacting business with i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of excise - (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section, be deemed to be :- (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale; Provided that :- (i) where in accordance with the normal practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices to different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in clause (a) be deemed to be the normal price of such goods in relation to each such class of buyers; (ii) where such goods are sold by the assessee in the course of wholesale trade for delivery at the time and place of removal at a price fixed under any law for the time being in force or at a price being the maximum, fixed under any such law, then, notwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any excisable goods - (i) Where the goods are delivered at the time of removal in a packed condition, includes the cost of such packing except the cost of the packing which is of a durable nature and is returnable by the buyer to the assessee. Explanation. - In this sub-clause "packing" means the wrapper, container, bobbin, pirn, spool, reel or wrap beam or any other thing in which or on which the excisable goods are wrapped, contained or wound; (ii) does not include the amount of the duty of excise, sales tax and other taxes, if any, payable on such goods and, subject to such rules as may be made, the trade discount (such discount not being refundable on any account whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale; (e) "wholesale trade" means sale to dealers, industrial consumers, Government, Local authorities and other buyers, who or which purchase their requirements otherwise than in retail." 4. The petitioner further goes on to say that while submitting the price lists effective from 14-6-1979, 1-1-1980, 19-6-1980, 19-9-1980, the same were approved by responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co Limited has also a right to reject the dry cell batteries which fall short of agreed specifications and the brand name 'Philips' is printed on the metal jacket before it is used in the manufacture of a dry cell battery. M/s. Peico Limited would market the dry cell batteries under their brand name 'Philips'. After giving the narration of facts, practically admitting the contents of the petition to the effect that the petitioner while selling the product at its own level would do so in the name of 'Punjab Anand', whereas M/s. Peico Limited would do so in the name of "Philips". It is still averred in paragraph in question that the petitioner manufactures "Philips" brand dry cell batteries for and on behalf of M/s. Peico Limited and as such M/s. Peico Limited is the manufacturer within the meaning of Section 2(f) of the Central Excises and Salt Act. 6. The learned Counsel for the petitioner forcefully contends that the basic fact that the petitioner sells dry cell batteries according to the specification given by M/s. Peico Limited and the same is done at a wholesale cash price, having not been denied, the value on which goods were supplied to M/s. Peico Limited will be the only p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above, would go to show that the manufacturer of the goods was supplying it to the buyer according to the specification given by the buyer and the buyer would affix its trade mark on the goods. The only difference in the present case is that herein the petitioner is affixing trade mark on the goods and, to my mind, that would not make any difference in the proposition of law as enunciated in the case cited above. In view of what has been staled above, it is only the price for which the dry cell batteries are being sold to M/s. Peico Limited that will determine the excise duty and not the price at which M/s. Peico Limited is selling the said product to its wholesale agents. 10. In so far as preliminary objection taken in the written statement is concerned, suffice it to say that it will be too late in the day to relegate the petitioner to first suffer a final order of the concerned authorities and then to take up the matter in the appellate and revisional forum. Once the petition stands admitted, the plea of alternative remedy at the time of final arguments and that too after a decade would pale into total insignificance and cannot be permitted to be raised. Otherwise too, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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