TMI Blog2013 (3) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Entry authorizes and gives power for levy of imposition of duty on goods manufactured or produced in India. It has been contended that said provision is ultra vires of the charging Section i.e., Section 3 of the Act. Held that:- After considering the submissions and in the judgement of passed by the Hon’ble Supreme Court in Union of India & Ors. v. Bombay Tyre International Ltd. & Ors. reported in [1983 (10) TMI 51 - SUPREME COURT OF INDIA, NEW DELHI]. In view of the above reasons, when there is statutory provision, any order or circular cannot nullify that statutory provision. Court are of the considered opinion that the Trade Notice issued by Commissioner of Central Excise & Customs is illegal and contrary to the statutory provisions of Section 4(2) of the Act of 1944 and runs contrary to the law laid down by the Hon’ble Supreme Court. Therefore, the writ petition of the petitioner deserves to be allowed on this Count. Hence the writ petition is allowed - C.W.J.C. No. 3618 of 1997 (R) - - - Dated:- 19-7-2012 - Prakash Tatia and Aparesh Kumar Singh, JJ. Shri Dr. Sameer Chakraborty M.S. Mittal, Sr. Advocates and Shipli John, Advocate, for the Petitioner. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to each such place of removal. According to the learned counsel for the petitioner, it appears that by misinterpreting this clause and assuming it to be extension of the definition of place where the excise duty can be levied in addition to the gate of the factory premises, impugned notification dated 24th July, 1996 may have been issued, declaring that by virtue of this amendment the assessee shall be required to pay the excise duty of freight charges, as now the factory gate is not the actual place of removal and since the definition of the place of charging has been extended to the depot also, therefore, excise duty will be price of the goods at depot. 4. The learned counsel for the petitioner submitted that the Hon ble Supreme Court in the case of Union of India v. Bombay Tyres International Ltd. (supra) considered various aspects of the matter, including the scope and definition of the transportation charges to the depot and thereafter held that assessee is entitled to a deduction on account of the cost of transportation of the excisable article from the factory gate to the place or places where it is sold and further held that where freight is averaged and the averaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e determined in terms of the price charged by the assessee in respect of the article manufactured by him and not merely in terms of manufacturing cost plus manufacturing profit and Hon ble Supreme Court held that expressed normal price and related person as defined in Section 4(4)(c) is not unconstitutional. However, that is not the issue before us, nor the issue with respect to the interpretation of the word manufacture is before us, which have been interpreted by the Hon ble Supreme Court in detail, but the issue which was relevant for our purpose was with respect to the same subject matter, which is provided in Entry 84 of List-I of Schedule VII of the Constitution and particularly the subject of the levy of excise duty and manufacture or production vis- -vis point of collection under Section 4 of the Central Excises and Salt Act, 1944. The specific question before the Hon ble Supreme Court was with respect to whether the value of an article for the purposes of the excise levy must be determined by reference exclusively to the manufacturing cost and the manufacturing profit of the manufacturer or should be represented by entire wholesale price charged by the manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deducted in order to arrive at the real wholesale cash price at the factory gate and no excise duty can be charged on it. 7. Since the Revenue is claiming that the insertion of Clause (i-a) after Clause (a) of sub-section (1) of Section 4 whereby, by deeming clause the place of removal has been changed, therefore, according to the Revenue, the notification impugned is in consonance with the amendment and is making only the legal position clear and, therefore, rightly held that after the amendment transportation charges are also required to be added in the value of the goods for the purpose of levy of excise duty. 8. The argument of the learned counsel for the Revenue is a view just contrary to the law laid down by the Hon ble Supreme Court in the case of VIP Industries Ltd. (supra). In VIP Industries Ltd. In above case, Tribunal upheld the view of the Department on the reasoning that amendment and inclusion of newly added proviso (i-a) to Section 4(1)(a) changed the definition of place of removal and the depot is covered under the extended definition by statutory provision and, therefore, excise duty which is chargeable and leviable at the place of removal. Hence any charge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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