TMI Blog1971 (12) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... made thereunder. The essence of that allegation is that the learned Judge failed to appreciate that under the provisions of Section 4 of the Central Excises and Salt Act, the "value" of any article must first be determined after deducting the trade discount allowance and the amount of duty payable from the wholesale cash price. It is also alleged that the learned Judge was in error in so far as Item No. 36 of the First Schedule to the Central Excises and Salt Act, 1944 indicates that duty will be paid ad valorem on footwar and therefore it was imperative first to arrive at the "value" in terms and in the manner prescribed under Section 4 of the Act and then only could it be seen whether such value was below Rs. 5 so as to qualify for the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... footwar and parts thereof by this notification. In the second notification G. S. R. 804, dated the 26th May, 1967, in exercise of the powers conferred by Rule 8(1) of the Excise Rules 1944, the Central Government made the following further amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 24/65-Central Excises, dated the 28th February, 1965, to the effect that "in the said notification, in the Table, the entries against Serial No. 13 relating to Item No. 36 shall be omitted". That means that the full excise duty was re-imposed again on "Footwar and parts thereof". 5. Now, the third notification is dated the 24th July, 1967 - which says that "in exercise of the powers conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wholesale price. It is determined upon the assessable value, and the wholesale price is only a basis for arriving at the assessable value, which had to be worked out in accordance with a formula embodied in Section 4 of the Act. That formula does not stand amended or abrogated by the notification of the 24th July, 1967. Nor does the formula contemplate a dissection of the constituents of the wholesale price before allowing the deductions contemplated in the Explanation to Section 4. I further think that in proceeding to apply that formula for arriving at the assessable value of a particular category of footwar, it would not be right to start with any presumption that it has qualified for exemption by reason of its assessable value. Rather ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of the removal of the article chargeable with duty from the factory", which occurs in the Explanation to Section 4, is that unless the duty is paid in respect of any article, no duty is admissible. 16. As at present advised, I am not convinced that the Patna view that "the amount of duty payable at the time of the removal of the article" is merely descriptive of the true nature of the duty and at the stage in which it is payable, is correct. 17. Now, at this stage it is necessary to refer to the notification of the 24th July, 1967, which says :- "In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts, with effect from the 26th May, 1967, footwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to apply the same meaning to the word "value" in the notification of exemption dated 24th July, 1967, and to the "value" in Section 4 of the Act and in the Explanation thereto. As at present advised, I do not see any warrant for it. All that Section 4 of the Act does is to lay down the formula or the principle for "determination of value for the purposes of duty". lt does not lay down any principle or formula for the determination of the value for exemption from duty. Somehow or other, the position of the appellants is that they claiming exemption upon exemption. They are allowing duty to be exempted once from the value of the goods for the determination of value for the purposes of duty and again they are deducting the value of the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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