TMI Blog1987 (2) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... new Section 4 of the Central Excises and Salt Act, 1944 on 1-10-1975. In accordance with the requirements of the new section, the respondents, by/ their letter dated 23-9-1975, disclosed their marketing pattern in the following terms:- 2. DISTRIBUTION PATTERN Our products in clause 1 above manufactured at our works at Ennora, Madras are distributed to our various customers all over India through dealers net-work covering all the States. At the moment there are 13 independent Main Dealers, all non-related to us. The list of the dealers is given below:- 1. to 13. xxx xxx xxx The distribution is effected through the above main dealers who in turn have their own arrangement for sub-dealership. The Main Dealer appoints Sub-dealers who do not come into contact directly with us except as per the instructions from the Main-dealer. Our discounting pattern remains unaffected by any arrangement of Sub-dealership. 3. CLASS OF BUYERS We have the following classes of buyers: a) Nationalised State Transport Undertaking. b) Government Projects/Departments/Local Bodies. c) Private Sector customers. d) Defence. Direct Demanding Officers should route their orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther sub-dealers could be treated as non-related persons. In remand, the Assistant Collector passed another order on 12-4-1977 in which he accepted the uniform discount of Rs. 1500/- given by main dealers to sub-dealers but disallowed the over-riding commission given by the respondents to their main dealers in the case of supplies made by the respondents directly to Government Departments etc. Not satisfied with the Appellate Collector s order, the respondents filed a revision application to the Central Government. The Central Government confirmed that main dealers were related persons but accepted the price charged by the main dealers to sub-dealers. All the clearances were consequently assessed uniformly on the price charged by the main dealers to sub-dealers, irrespective of the category of sales. The respondents persisted in their point that their main dealers were not related persons and took the matter to the High Court of Madras by way of a writ petition and sought the writ of certiorari. A learned Single Judge of the Madras High Court allowed the writ in favour of the respondents on 28-9-1981. The department filed an appeal before the Division Bench of the High Court, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 30-1-1987. At one stage, the respondents challenged the Assistant Collector s competence to review his own refund sanction orders, and that too without issuing a show cause notice. They also challenged the maintainability of the department s present appeals stating that no further appeal lay under Section 35B(1) against the orders passed under Section 35 E of the Act. The learned representative of the department countered it saying that the department had a right of appeal under Section 35B(1) against the main order-in-appeal No. 210 of 1984 which had been passed by the Collector (Appeals) on the respondents appeal before him and thus the department s appeals were filed under Section 35 E as well as 35B(1). Later, on instructions from the respondents, their learned Advocate stated that the respondents realised the fact that their protest all along had been against approvals on price lists in part-IV (related person) and that they had not clearly protested against approvals of price lists in part-II which related to sales to Government Bodies and Departments etc. They also realised that in terms of proviso to Section 4(1)(a) of the Act there could be different normal prices in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppreciate this distinction. In paragraph 3 above, we have reproduced from their letter, dated 23-9-1975 in extense to show that they treated all these bodies, undertakings and authorities under the same class as Government Departments. This was their own marketing pattern as disclosed in their very first letter in terms of the new Section 4 when the question of any pressure or coercion from the department was not there. The price lists in part-II filed by them in pursuance of this marketing pattern covered the following classes of buyers in one group:- (1) Government Departments. (2) Nationalised Transport Undertakings. (3) Projects. (4) Local Bodies. (5) D.G.S. .D. Indentors". The respondents cannot now make out a new case. Sales made to all the five categories of Government Bodies and Departments, as stated by them above, shall be treated alike in terms of the proviso to Section 4(1)(a). 8. The two main points of the department, namely, treating Government Bodies and Departments as a separate class of buyers and working back of the assessable values in cases where a portion of the duty realised from the customers was retained by the respondents, in terms of the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in their favour on 28-9-1981 that their main dialers were not related persons. The respondents explained that though the Learned Single Judge of the Madras High Court had decided their writ petition in their favour on 28-9-1981, that was not the end of the matter because the department did not accept the said judgment and filed appeals first to the Division Bench and then to the Supreme Court. The respondents had, therefore, to safeguard their interest and they kept paying duty on the higher value under protest. We agree with the respondents. The refund claim arising as a consequence of the High Court judgment, later confirmed by the Supreme Court, was not time barred. (4) Finally, the learned representative of the department contended that retail sales and removals for captive use were not the subject matter of original adjudication by the Assistant Collector and hence the assessments made in these cases had become final and it was not open to the respondents to bring them up at the time of claiming consequential refund. We do not agree. Once the normal price under Section 4(1)(a) had been finally determined at the level of the Supreme Court, assessments of all categories to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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