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TMI Blog2003 (4) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... the price under Clause (a) of sub-section (1) of Section 4, the authority lacks jurisdiction to issue notice calling upon the assessee to show cause in the matter. There can be no doubt that in matters of taxation, it is inappropriate for the High Court to interfere in exercise of jurisdiction under Article 226 of the Constitution either at the stage of show cause notice or at the stage of assessment where alternative remedy by way of filing a reply or appeal, as the case may be, is available but these are the limitations imposed by the Courts themselves in exercise of their jurisdiction and they are not matters of jurisdictional factors. Had the High Court declined to interfere at the stage of show cause notice, perhaps this Court would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 1990-91. On June 30, 1995, the Revenue issued show cause notice purporting to be under Section 11A of the Act demanding duty in a sum of Rs. 45.98 crores on the allegation that due to clandestine removal of the goods and incorrect valuation of the goods, there has been non-levy and short-levy of the excise duty. The assessee, without replying to the show cause notice, challenged the same before the High Court in the afore-mentioned writ petition on November 24, 1995. Insofar as Paragraphs (1) to (13) of the show cause notice which related to the clandestine removal of the goods are concerned, the High Court dismissed the writ petition, the assessee was directed to submit its reply within thirty days thereof and the Revenue was directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice and the High Court has rightly issued the prohibition in regard thereto. His further submission is that if two causes are clubbed in one notice, one without jurisdiction and the other with jurisdiction, the writ petitioner cannot be denied remedy in the other cause on the sole ground that in one cause the authority was held to have jurisdiction in the matter. 7.Section 11A of the Act, inter alia, empowers a Central Excise Officer to serve a notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid to show cause why he should not pay the amount specified in the notice. 8.Section 4 of the Act is the charging section. Insofar as it is relevant for our purpose, it re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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, prin, spool, reel or warp 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof would arise where the normal price of such goods is not ascertainable either because (a) such goods are not sold, or (b) for any other reason like the normal price being incorrectly represented, etc. Admittedly, in this case, all the requirements of Clause (a) are fulfilled; the buyer is not a related person and this is a common ground that the price is the sole consideration for sale. The goods in question are, therefore, assessable to excise duty with reference to the normal 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. 10.In the instant case, it is not pointed out to us that there is anything to suggest in Paragraphs (14) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the writ petition and decided the issue on merits, we do not think it appropriate to upset the impugned order of the High Court under Article 136 of the Constitution on a technical ground. 12.The second contention urged by Mr. T.L.V. Iyer is that under Section 11A, the authority did have power and the High Court had; itself found in regard to Paragraphs (1) to (13) and directed inquiry in respect of the clandestine removal of the goods. The assessee could have been directed to file a reply in regard to the matters concerning the incorrect valuation and the High Court ought not to have interfered. We are unable to accept the contention of the learned Counsel for reasons more than one. First, as submitted by Mr. K.K. Venugopal, if an aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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