TMI Blog1976 (7) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... consequent prayer about the refund of the excise duty has also been made. 2. At the time of the hearing of this petition, learned Counsel for the petitioner confined his challenge only to the inclusion of transportation charges in the assessable value of those items and abandoned other grounds of challenge. We would, therefore, deal only with that question. 3. The case of the petitioner relevant for the disposal of this petition is as follows :- The petitioner, a limited Company, carries on business in manufacture, bottling and sale of aerated water having brands viz., (i) Coca-Cola, (ii) Fanta- Orange and (iii) Fanta-Soda. The manufacture and bottling are carried on at factory of the petitioner which is situated at Agra-Bombay Road, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner claims that after 29-12-1970 they filed as they state "the correct price lists (Annexure D-1, D-2 and D-3 for the different quarters showing Rs. 6.00 and Rs. 2.25 as the ex-factory wholesale price per unit of Coca-Cola, Fanta-Orange and Fanta-Soda respectively. The respondent No. 1, however, passed orders thereon that "the assessee is charging Rs. 1.54 per unit as transport or service charges in the case of all consignments in the invoices and is not included by him to the units". He, therefore, ordered for the inclusion of Rs. 1 54 per unit in the price. The petitioners have between 1-3-1970 and 31-1-1972 deposited a total amount of Rs. 9,71,179.13 p. (Annexure P) which includes an excess payment of Rs. 1,94,733.00 on 12,64,500 crat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchasers of Indore city which are included in the price list submitted by the petitioner up to 31-3-1971 (Annexure B-1 and B-2) irrespective of distance from the factory. The contention, therefore, is that the transport charges are not independent of sale considerations and they are integral part of the sale price of the goods. Yet, another ground put forth is that the goods are sent by the petitioner in its own vehicles to the customers in bulk. The persons in whose names the gate passes are issued when the goods are being removed from the factory premises are mostly employees of the petitioner which is evident from Annexure B-7. Thus according to the respondent the property in the goods passes to the customers when they are delivere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be considered for purposes of Section 4 of the Act. Their Lordships in the case of Voltas Ltd. (supra) have laid down as follows :- "The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing cost and profit arising from post-manufacturing operation, namely selling profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyers for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn the averments in that behalf of the petitioner have been denied besides the clear denial admittedly made in later counter -affidavit. The factual position in respect to the orders on (petitioner's Annexure D-1, D-2 and D-3) passed by the assessing authority, has already been dealt with above. 22. Consequently, this petition is partly allowed. The assessments for the period in question i.e., from 1-3-1970 to 31-1-1972 including the orders of respondent No. 1 on Annexure B-1, B-2 and B-3 are quashed. The respondent No. 1 shall proceed to make fresh assessments and determine the petitioner's liability about the excise duty in the light of the principles paid down by their Lordships of the Supreme Court in the aforesaid two decisions and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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