TMI Blog1987 (3) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods manufactured and supplied to M/s. Goodyear, (iv) undertaking not to sell any of the goods affixed with the brand name of M/s. Goodyear to any other than M/s. Goodyear, (v) fixation of price - F.O.R. Calcutta/Howrah/Shalimar -inclusive of packing but exclusive of excise duty, and other statutory levies, which, if and when imposed, will be changed separately ; (b) admittedly, a price list, for the period between 4-8-1972 and 31-3-1973, disclosing the assessable value to be the price of M/s. Goodyear to their wholesale dealers - and not the price the Appellant realises from M/s. Goodyear - was filed and approved. That approval became final and the goods were assessed to duty and cleared from time to time during the aforesaid period [para 1 of the Order-in-adjudication]; (c) nevertheless, an application for refund of a sum of Rs. 11,171.50, said to have been paid in excess in the aforesaid period was preferred before the Assistant Collector, on 23-4-1973 principally on the grounds of - (i) determination of the assessable value solely on the manufacturing cost and manufacturing profit of the Appellant [on the basis of the ratio of the Supreme Court in AIR 1973 S.C. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equel. 2. In the Revision Application it was submitted, inter alia, that (a) the appellant is the manufacturer - not M/s. Goodyear; (b) the price realised by the Appellant represents truly the manufacturing cost and manufacturing profit; (c) M/s. Goodyear incur various costs for the sales of the manufactured products purchased from the Appellant and their price, necessarily, includes all such costs and consequently their prices are higher; (d) since the time the goods in question were brought to levy, their assessable value was always determined at the price realised by M/s. Goodyear from their customers and following the Self Removal Procedure, they had been paying duty as per assessments of the authorities of Central Excise on that basis; (e) it is not as if the price stipulated to be paid in terms of a contract between the manufacturer and his dealers at arm s length does not represent the wholesale cash price at the time and place of removal. Accordingly, the price stipulated in terms of the agreement between the Appellant and M/s. Good year represents the wholesale cash price; (f) while it may be that, in terms of the agreement, the Appellant is preclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessment could be reopened for any short levy resulting from inadvertence, error or misconstruction; (b) if this were so, a completed assessment can also be reopened for the grant of a refund that may be due precisely for the identical reasons - namely, inadvertence error or misconstruction, in terms of Rule 11 of the Rules, notwithstanding that the order in assessment had become final; (c) a contrary construction would render the aforesaid Ruleotiose and ineffective. 4. This apart, in his submission, - (a) Rule 11 of the Central Excise Rules, as it read at the material time, significantly omitted all reference to an assessment. It spoke only of a payment or adjustment of duties or charges in account current through inadvertence, error or misconstruction. If, therefore, a payment was made in error, or inadvertently or owing to misconstruction, it has to be refunded in terms of that Ruleregardless of any previous assessments or quasi-judicial determination of the assessable value preceding such assessments; (b) in any view, there being nothing on record, the question as to whether there were, indeed, assessments made or not, on the basis of a pre-determined ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and law; (b) nor does the decision in AIR 1978 S.C. 851 lay it down that the order under appeal is to sustain on its own and no new grounds in support of it could, invariably, be advanced by the Respondent in an appeal against it. That was a case where an order of cancellation of a poll and fixation of dates for a repoll by the Election Commission of India was challenged by a Writ Petition. Obviously that order has to stand or fall on its own reasons and the reasons contained therein cannot be supplemented by an affidavit or otherwise by the Election Commission. It was in this context, that the Hon ble Supreme Court observed that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise . We are concerned here with a quasi-judicial order made by the Appellate Collector. He is not supplementing the reasons he had furnished by affidavit or otherwise. In an appeal against his order, the Respondent can always sustain his order either on the grounds stated therein or such other grounds that he may advance in support of it. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In case the removals are frequent and the assessee maintains sufficient credit balance in his account current, removal can be permitted on presentation of a gate pass [Rule 52 of the Rules]. Monthly returns are to be filed showing, amongst others, the quantity of excisable goods manufactured and removed [Rule 54 of the Rules]. Separate Rule s had also been framed prescribing the procedure for removal of specified excisable goods like e.g. matches, sugar, etc. and abatement of duty in respect of damaged goods and refund of duty on goods returned to the factory after clearance for export or otherwise [Rules 58 to 138] as well as warehousing of goods [Rules 139 to 173]; (iii) it may be observed that in all the cases to which the aforesaid Rules apply, it is only in the course of the assessment that the classification as well as valuation of the goods is determined and the appropriate duty quantified. There is no pre-determination of either the classification or valuation of the goods prior to assessment on clearance, although, it may be that, consistent with previous practice, both the aforesaid issues of classification and valuation may not require an elaborate consideration every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions in an approved price list; (e) the other provisions material at the relevant time are the un-amended Section 4 of the Act and Rules 10, 10-A and 11 of the Central Excises Rules, 1944; (f) in the backdrop of the aforesaid provisions, the questions that arise for consideration in the facts of the case, in the first instance, are - (i) Could a quasi-judicial determination of either the rate of duty (classification) or the value for purposes of assessment (assessable value or valuation) which had become final not having been set aside in an appropriate proceeding by way of appeal or revision - be reviewed or re-opened and if so, when and in what circumstances? (ii) Could an assessment which had become final likewise be reviewed or reopened and if so, when and in what circumstances? (g) in a consideration of the aforesaid questions, it cannot be forgotten that - (i) Rule 10-A on which reliance was placed by the Hon ble Supreme Court in 1985(20) E.L.T. 416 (Asstt. Collector v. National Tobacco), 1985(20) E.L.T. 212 (= AIR 1985 S.C. 537 -D.R. Kohli v. Atul Products), and 1986(25) E.L.T. 3 (Andhra Re-rolling Mills v. Union of India) was repealed and no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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