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TMI Blog1990 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... le moulding and manufacturing the torches, certain quantity of scrap (cuttings) is obtained which is not useful for any purpose of the petitioner. The petitioner says that as and when sufficient quantity of scrap is collected in his premises, he sells it. There are persons known as 'Kabaris' who come and purchase the same. The petitioner says there is no fixed price for this scrap which is treated as 'waste'. The price depends upon negotiations that take place on each occasion. It is for this reason, the petitioner says, he could not file the price list for the approval of the authority concerned as required by the Central Excise Rules and was obliged to make an application under sub-rule (11) of Rule 173C, on 15th December, 1987. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant circumstances and the order must show that the authority has applied his mind to the relevant circumstances. 5. Rule 173C obliges the manufacturer/producer to file price list of goods assessable ad valorem. Sub-rules (1) to (6) and (11) of Rule 173C are reproduced below:- (1) Every assessee who produces, manufactures or warehouses goods which are chargeable with duty at a rate dependent on the value of the goods, shall file with the proper officer a price list, in such form and in such manner and at such intervals as the Collector may require, showing the price of each of such goods and the trade discount, if any, allowed in respect thereof to the buyers along with such other particulars as the Central Board of Excise and Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods shall be determined by the assessee himself on the basis of the price-list filed by him, subject to the provisions of sub-rule (6). (5) Subject to the provisions of Rule 173CC, an assessee specified in sub-rule (2) shall not clear any goods from a factory, warehouse or other approved place of storage unless the price-list has been approved by the proper officer. In case the proper officer is of the opinion that on account of any enquiry to be made in the matter or for any other reasons to be recorded in writing, there is likely to be delay in according approval, he shall either on a written request made by the assessee or of his own accord allow such assessee to avail himself of the procedure prescribed under Rule 9B for provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said assessees for the particular wholesale consignment on the gate pass or accompanying challan or advice note and to determine the duty payable on such goods intended to be removed on the basis of the said declared price : Provided that where the price thus declared on the gate pass or accompanying challan or advice note does not represent the value as determined under Section 4 of the Act, the proper officer may, after such further inquiry, as he may consider necessary, reassess the duty due and thereupon the assessee shall pay the deficiency if any, by a debit in his account-current or in case of excess payment take credit of the amount paid in excess in the manner prescribed in sub-rule (2) of Rule 173-I." 6. A reading of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case under the Central Excise Act as well. See AIR 1971 SC 862 = 1978 (2) E.L.T. (J 378) (SC). 8. In the above circumstances, we are not inclined to dismiss the writ petition on the ground of alternate remedy and to direct the petitioner to avail of the remedy under Section 35(D). 9. The impugned order is quashed. The Collector Central Excise shall pass a fresh order after considering all the relevant circumstances including any further representation that may be made by the petitioner in this behalf. Any such representation by the petitioner shall be made within three weeks from today. Any representation filed thereafter shall not be taken into account. 10. The writ petition is allowed accordingly in terms indicated above. No costs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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