TMI Blog1967 (5) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... duty from the factory or any other premises of manufacture or production for delivery at the place of manufacture or production or if a wholesale market does not exist for such article at such place at the nearest place where such market exists, or (b) Where such price is not ascertain-able, the price at which an article of the like kind and quality is sold or is capable or be-ins sold by the manufacturer or producer or his agent, at the time of the removal of the article chargeable with duty from such factory or other premises for delivery at the place of manufacture or production or of such article is not sold or is not capable of being sold at such place, any other place nearest thereto. Explanation:-- In determining the price of any article under this section no abatement or deduction shall be allowed except in respect of trade discount and the amount of duty payable at the time of the removal of the article chargeable with duty from the factory or other premises aforesaid. This section came to be construed by me in the case of National Tobacco Co. of India Ltd. v. Collector of Central Excise, The learned Judge in the court below has relied upon it and Mr. Roy Chou-dhury f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted or debited as the case may be on each occasion, and then the account is periodically adjusted, These provisions will be considered in greater detail on the question of limitation which has been raised. In practice, what happened is that, in order to facilitate the rapid removal of the goods, the respondents in their said business made up a consolidated price list from time to time and the Central Excise authorities approved of the same. Goods were allowed to be removed upon an assessment made on the strength of the consolidated price lists. Unfortunately, these assessments do not conform to the conditions laid down in the rules for a provisional assessment. Even if it was unintended, the result is that the assessments are in a form which cannot but be declared as final assessments. As will appear shortly, this has given rise to a very serious question of limitation. The respondents were served with the following notices of demand purported to be under Rule 10-A of the Central Excise and Salt Rules, 1944 (hereinafter referred to as the said Rules ): Date Amount (1) Date of notice 28th Jan, 1958 1,234.69 NP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e closely related to the partners of Santlal Bansidhar The relationship is as follows: The respondents are the two sons of Bansidhar Agarwalla since deceased, and they constituted a partnership carried on under the name and style of Bansidhar Sankarlal Agarwalla, who are the owners of Olympia Rubber Works, the manufacturer of the goods. Sm. Ganga Debi, widow of Bansidhar Agarwalla, the mother of the respondents, together with another son of Bansidhar, form a partnership carried on under the name and style of Messrs. Santlal Bansidhar. At least they have a major share therein. The suggestion is that the sales to Messrs. Santlal Bansidhar constituted a domestic arrangement, calculated to keep the price down and Messrs. Santlal Bansidhar were nothing but the agents of respondents. Therefore, it is the sales made by them that are to be considered as sales in the open market and not the alleged sale made to them by the manufacturers. Our attention was drawn to Ext A, annexed to the supplementary affidavit of Sunit Narayan Basu, Inspector of Central Excise, Calcutta and Orissa Collectorate affirmed on 14th August, 1961 appearing at pages 60 to 71 in Part I Vol. II of the paper book, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Santlal Bansidhar sold to their purchasers. No benefit has ever accrued to the petitioners from sales by Santlal Bansidhar to their retailers nor have the petitioners ever been liable for any loss that may have arisen therefrom to the said Santlal Bansidhar. ( 4. ) It is somewhat strange that the business premises on Chitpure Road of Messrs. Santlal Bansidhar should be considered as the nearest wholesale market. But we have a clear admission to that effect on behalf of the respondents. What then is the position? Is it possible, upon the materials placed before us to come to a conclusion as to whether the price paid by Messrs Santlal Bansidhar to the manufacturers is the correct wholesale price or is it the price that they have in their turn charged their purchasers? In my opinion, this is a strongly disputed question of fact, which is not possible to be determined in this jurisdiction, and no attempt should be made to decide this issue without taking evidence The facts alleged on behalf of the appellants raise strong suspicion. Messrs. Santlal Bansidhar belong to persons closely related to the respondents. The sales are made to them at a lower price, which is invariably in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubscribes a declaration before the proper officer to the effect that he is unable for want of full information to state precisely the real value or description of such goods in the proper forms or (b) where the owner of any goods has furnished full information in regard to the real value or description of the goods, but the proper officer requires further proof in respect thereof (c) where the proper officer deems a expedient to subject any excisable goods to any Chemical or other test, the propei officer may direct that the duty leviable on such goods may, pending the production of such information or proof of pending the completion of any such test, be assessed provisionally. (2) When the owner of any goods a respect of which the duty has been assessed provisionally under sub-rule (1) has paid such duty, the proper officer may make an order allowing the goods to be cleared for home consumption or for exportation, as the case may be and such order shall be sufficient authority for the removal of the goods by the owner. ( 5. ) Now we come to two important Rules which deal with the recovery of charges short-levied. These two Rules, are Rules 10 and 10A and are set out belows:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar case, the respondents were called upon to execute a bond in terms of the proviso to Rule 10B (2) on 22nd May 1958, Therefore, the assessments subsequent to that are clearly provisional assessments. But assessments prior to it, are not provisional assessments, but final assessments. The reason is that, for a provisional assessment there are certain pre-conditions which are set out in Rule 10B (1) above Prior to the execution of the bond, these pre-condttions were not satisfied and the circumstances were similar to the facts in the case of That the assessments prior to 22nd May 1958 were not provisional assessments is clear from the endorsement of the Excise authorities. The learned Judge in the court below gave illustrative example which runs as follows: Checked with approved price list No .....of 19 and duty and discount assessed accordingly Further the petitioners not having had asked for clearance of the goods and provisional assessment under Rule 10B at any time prior to May 22 1958 and not having had executed a bond in res-pect of such clearances under Rule 10B (2) proviso and further the respondents themselves not being in doubts about the value at the time of assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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