9911796707
TMI Blog1989 (9) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire sale was made by petitioner No. 1 firm to M/s. Saraswati Silk Mills which in turn sold goods in the market. Therefore the department held that the price charged by M/s. Saraswati Silk Mills while selling the same to dealers was the correct market price for the purpose of assessment and levy of the duty. The petitioner agreed to make the payment of the duty on the basis of the price charged by M/s. Saraswati Silk Mills to the dealers. However, the petitioner claimed certain deductions from the price charged by M/s. Saraswati Silk Mills. The dispute centered round the deductions claimed by the petitioners. 2. The Assistant Collector heard the petitioner with regard to the disputes in question. The particulars of the disputes raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. (iii) Deduction on account of loss in price due to sale at lower price of tents, rags, chindies. The deduction of 7% claimed by the appellants on this account is not permissible because the assessable value is based on the condition in which the goods are cleared from factory. (iv) 3% uniform discount allowed by the Assistant Collector is correct in law because M/s. S.S. Silk Mills pass on the discount of 3% to the dealers. 6% discount claimed by the appellants cannot be allowed to be deducted from the price because the quantum of discount allowed to dealers uniformly, can only be allowed to be deducted." 3. The claim of the petitioner with regard to the deduction on account of packing, labour and labelling charges cannot be sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the condition in which the goods were cleared from the factory. 6. In view of the above position, the learned counsel for the petitioners contends that since there was no appeal nor cross-objections were filed by the revenue, in an appeal filed by the petitioner against the order of the Assistant Collector the Collector (Appeals) has no jurisdiction to vary/modify or make any alteration whatsoever in the impugned order passed by the Assistant Collector so as to adversely affect the appellant-petitioner. The contention cannot be accepted. The Collector of Central Excise, Customs (Appeals) passed order on August 2,1977. Section 35 of the Central Excises and Salt Act, 1944 under which he decided the appeal empowered the Collector to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider best according to their notions of justice". Similar view is expressed by the Supreme Court in the case of V.C. Rangadurai v. D. Gopalan Others reported in AIR 1979 Supreme Court page 281. While interpreting the phrase "as it deems fit" occurring in Section 37 of the Advocates Act (25 of 1961) the Supreme Court has observed that "wide as the power may be the order must be germane to the Act and its purposes, and latitude cannot transcend those limits". 7. Thus in view of the aforesaid decisions of the Supreme Court, the only limit on the power of the appellate authority under Section 35 of "the Act" as it then stood is that the order must be germane to the Act and its purposes. The appellate authority cannot pass an order de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce in this argument raised by the learned counsel for the petitioners. In the case of Orient Paper Mills v. Union of India, reported AIR 1969 Supreme Court, page 48 =1978 (2) E.L.T. (J 328) (S.C.) the provisions of Section 35 of the Act came up for consideration before the Supreme Court. The Supreme Court held that the Collector (Appeals) exercises his quasi-judicial power while acting under the provisions of Section 35 of the Act. There is a lis between the parties. At the end of the adjudication the liability of the party is to be determined as to the leviability or otherwise of the excise duty or as regards the quantum of excise duty payable by the party. Such decision is likely to affect the rights of the parties. Therefore, even if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on this point cannot be interfered with while exercising powers under Articles 226/227 of the Constitution of India. 10. In above view of the matter, as far as the decision with regard to deduction on account of loss in price due to sale at lower price of fents, rags, chindies is concerned, it cannot be sustained as being in contravention of the principles of natural justice. To that extent, the order passed by the Collector (Appeals) is required to be reversed and set aside and hereby it is set aside to that limited extent only. The matter is remanded to the Appellate Collector, Central Excise Customs (Appeals), Bombay for affording an opportunity of being heard to the petitioner on this point and decide the issue in accordance with law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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