TMI Blog1980 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... t from other deductions claimed from the amount of Rs. 9.50 and 4.80, the Petitioners claimed a deduction of Rs. 1.50 per crate of 24 bottles on account of distribution cost which, according to the Petitioners, could not be taken into account for assessing the value of the aerated waters for the purpose of excise duty. The Superintendent of Central Excise, Assessment Group "B" Pune II Division, allowed exclusion of octroi, sales tax and central excise from the price of Rs. 9.50 and Rs. 4.80 and for the purpose of excise duty, the value of Coca cola and Fanta orange was determined at Rs. 7.84 per crate of 24 bottles and Rs. 4.02 of Fanta soda. The Superintendent seems to have taken view that under section 4 of the Central Excises and Salt Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. It was further observed in the revisional order that on account of this fact, no rebate for freight charges was admissible. The order then further reads: "The Government of India also observes that when the cost attributable on the score is not determinable and is not indicated in the Petitioners' documents the case laws quoted by them in the argument are not relevant." The revision application thus came to be dismissed. The Petitioners have now challenged the orders of the Central Excise authorities in this petition. 4. Shri Taraporewalla has argued that the matter is now expressly covered by a decision of this Court in Indian Tobacco Company Ltd. v. The Union of India. Misc. Petition No. 203 of 1974 decided on 15th December 1975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise duty on the goods produced or manufactured in India and the provisions of section 3(1) clearly indicated the nature and character of the duty, namely, that it is a tax on production and manufacture of goods section 4 of the Act was in the nature of machinery provision and therefore anything said in section 4 must be so read as to carry out the basic concept of excise duty and not so as to militate against that concept. 5. Referring to the provisions of section 4 and to the deeming provision contained in section 4(1)(a), the Division Bench observed as follows : "In our view, therefore, there is nothing either in the deeming provision nor in the language of the section which suggests that while arriving at the assessable value of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price charged and (b) delivery at the godowns of the wholesalers by the company by its lorries, in which case the element of freight would enter into the price charged, and that since in both the types of delivery the Company admittedly charged a uniform price to its wholesalers there was no question of such wholesale price including any element of freight and therefore no deduction of freight could be claimed by the company from the wholesale price charged by it to its wholesalers. Rejecting the contention of the Counsel for the Department that no part of the advertising expenses incurred by the Company could be deducted with reference to the freight, the Division Bench observed as follows : "Similarly as regards freight though it is tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondents has fairly conceded that the question whether freight should be deducted from the price charged to the wholesalers for the purpose of determining the assessable value of the manufactured product stands now concluded by the decision of the Division Bench in the Indian Tobacco Company's case. 7. Now, so far as the facts of the present case are concerned, the claim of the Petitioner was that the sales to the wholesalers and the retailers were made at the same price of Rs. 9.50 for two kinds of drink and at Rs. 4.80 for the third kind of drink and that the price charged to the wholesalers and the retailers were inclusive of the freight which was uniformly spread over at the rate of Rs. 1.50 per crate of 24 bottles. This frei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which held that the Petitioners were not entitled to a deduction of the amount spent or charged to the wholesalers or retailer on account of freight. It will, however, be necessary to determine exactly how much amount was charged, though it is no doubt true, according to the Petitioners, that the amount charged was Rs. 1.50. This will have to be substantiated by the Petitioners before the appropriate authority, if necessary, by producing the account books or such other evidence that the Petitioners may desire to produce in support of their contention that Rs. 1.50 was the freight uniformly charged to the wholesalers and the retailers. 9. Both the parties agree that the matter may be remanded to the Assistant Collector of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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