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TMI Blog1974 (7) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... The said Bond was signed on May 8, 1968. With effect from June 1, 1968 special procedure under Chapter VIII of the Central Excise Rules, 1944 began to apply in case of rubber products. Since June 1, 1968 the petitioner had been clearing goods from his factory under the Gate Passes in the prescribed forms and by submitting monthly returns in Form R.T. 12. He had paid the above excise duty on the basis of the price lists submitted by him from time to time. 3. The subject matters of the challenge in the present Rule are: (a) the show cause notice, dated the 26th October, 1968 issued by the Assistant Collector, Central Excise, Calcutta VI Division, C. No. V (16A) 18/11-Cal. VI/68/3516; (b) the letter of the Assistant Collector, Central Excise, Calcutta VI Division No. C.No.V(16-A)/18/11/ Cal. VI/68/ 4565, dated the 27th November, 1968, and (c) Order No. 1 (16A) A.C. 1071 dated the 26th May, 1971 passed by the Assistant Collector, Central Excise, Calcutta VI Division. The Assistant Collector by the above show cause notice, dated the 26th October, 1968 had called upon the petitioner above concern to show cause why the assessable value of hose pipes manufactured by it with the Dunl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the 26th May, 1971, was valid and in accordance with law. * * * * * * 6. The Assistant Collector, Central Excise, Calcutta VI Division in his order, dated the 26th May, 1971, has referred to the special procedure under Chapter VIIA of the Central Excise Rules, 1944 according to which the manufacturer determined the duty on the basis of the value approved by the Central Excise Authority and cleared the goods on payment of the duty so determined under proper Gate Pass. At the end of each month, the manufacturer submitted a return to the proper Central Excise Officer showing therein the details of the goods cleared during the month of payment of duty. The Central Excise Officer then assessed the duty on the goods after such enquiry as he might consider necessary. The Assistant Collector himself has mentioned that such special procedure has become applicable to rubber products under Item No. 10A of the Central Excise Tariff with effect from the 1st June, 1968. 7. The Assistant Collector in his said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that upon enquiry he had come to know that Smt. Bela Chakraborty was the wife of the petitioner. The respondents also relied upon the earlier years' entries in the Demand Registrar of Trade and Profession of Tax of the Calcutta Corporation which showed that Smt. Bela Chakraborty was the wife of Sushil Chakraborty and subsequently the said entry was altered to show the name of father of Bela Chakraborty instead of her alleged husband (vide Annexure `E' to the affidavit-in-opposition). 9. In view, the petitioner is not entitle to challenge in this writ application the above finding of fact of the Assistant Collector that he was really the owner of the two businesses, named Messrs. Associated Rubber Works and the Rub Company. The Assistant Collector had undoubtedly jurisdiction to record the finding on this point of fact. He purported to rely upon some materials and arrived at his findings essentially of fact. The writ court does exercise the appellate or revision powers or powers of the Assistant Collector of Central Excise. Therefore, I cannot review the evidence in order to decide whether the above findings of the Assistant Collector about the ownership of Messrss. Associate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty synchronised with the clearance of goods. Hence goods had become free of enhanced duty. Recovery of enhanced duty was hold to be erroneous. 14. Recently the Supreme Court in A.K. Roy and another v. Voltas Limited, 1977 E.L.T. (J 177) pointed out the relevant factors for determination of wholesale cash price within the meaning of Section 4A of the Central Excises and Salt Act, 1944. Mathew, J. in paragraphs 20 and 21 of his judgment considered the question what exactly the meaning of the term 'wholesale cash price'. Reference was made to the Privy Council decision in Vacuum Oil Company v. Secretary of State for India in Council (A.I.R. 1932 P.C. 168) which held : "that the term means the price paid by retail traders on wholesale purchase. The essence of the idea is that the purchase must be a wholesale purchase and not a retail one. In other words, the same must be wholesale and not a retail one in order that the price realised may be termed the 'wholesale cash price'." Methew, J. further observed : "Excise is a tax on the production and manufacture of goods..." Section 4 of the Act therefore provides that the real value should be found after deducting the sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay not depend upon the number of such wholesale dealings. The fact that a manufacturer sold 90 to 95% of the articles manufactured to consumers direct would not make the price of the wholesale sales of the rest of the articles any less the `wholesale cash price' for the purpose of Section 4(a), even if these sales were made pursuant to agreements stipulating for certain commercial advantages, provided the agreements were entered into an arms length and in the ordinary course of business." 15. In the instant case, the Assistant Collector in his impugned order has held that the petitioner himself was the owner of the two concerns Rub Company and the Associated Rubber Works through whom bulk of the rubber hose were sold. Substance of the finding of the Assistant Collector that the transaction between the petitioner and the said selling agencies were not at arms length and the price paid by Associated Rubber Works and Rub Company to the petitioner did not represent the wholesale cash price of the goods. Accordingly, it was open to the excise authorities to determine the wholesale cash price of the goods manufactured in the petitioner's factory after taking into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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