TMI Blog1981 (11) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excises Act. This order was confirmed in the appeal as well as in the Revision by the Government. The learned single Judge held that as the procedure of equalised freight is adopted, the petitioner is not entitled for deduction of the freight charges. So far as packing material is concerned, the primary authority viz., the Collector held that the petitioner did not disclose the packing charges separately and the element of packing charge is linked with cost price. This order was confirmed in appeal and revision as well. In the writ petition, the learned single Judge held that the cost of packing material is not post-manufacturing expenditure and as such liable to be included in the wholesale cash price. In this view, the order was confirmed. 2. It is contended by the learned Counsel for the appellant that the expenditure towards freight as well as packing material is post-manufacturing expenditure and as such cannot form part of manufacturing cost. We are relieved of the task of dealing with this matter in depth as the issue pertaining to freight charges and packing materials as well is covered by the decisions of this Court reported in Union of India v. Vazir Sultan Tobacc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in commercial and trade practice and the report of I.S.I. indicates that the fan should always be understood as comprehending regulator and though the circular of the Board of Revenue is not binding, but is indicative of the intention that the fan comprises regulator also. The learned Counsel for the respondent further contended that the amendment made from 19-6-1977 to the effect that the fan includes regulator throws flood of light as the amendment in the context is tantamount to exposition of existing state of facts. The relevant portion of Item 33 of Schedule I to the Central Excises Act is as follows : "Electric fans including air circulators......... 1. Table, cabin, carriage, pedestal and air circulator fans. 2. All other fans. This item has been amended with effect from 19-6-1977 and the relevant position is herewith extracted. 33. Electric fans, including regulator for electric fans all sorts:- 1 ............. 2. Electric fans, designed for use in an industrial system. 3. Electric fans, not otherwise specified and regulators". 4. The learned Counsel for the appellant contended that fans can be purchased apart from the regulator and the fans as such can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructions are not binding on the court and have no legal effect. The learned Counsel for the appellant has referred to the statements of object and reasons of the Indian Standards Institution (Certification Marks) Act, 1952 to support his contention that this act is not concerned with the definition or amplitude of any commodity and it is only concerned with the standardisation and specifications for manufacture of goods and as such the reference to I.S.I. specification does not throw any light. In the statement of objects and reasons it is stated that the Indian Standards Institution are finalising standard specifications for most of the commodities and manufactured articles which figure in the export trade and also in the home Markets. In the process of finalising such specification it is necessary to describe the commodity or its associated components or delienate the ambit of any expression. The presence of I.S.I. certification mark on the products conveys an assurance that they have been produced in compliance with the requirements of that standard and well defined system of inspection testing and quality control during production. The relevant portions of the I.S.I. specifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In Ramavatar Buchiaprasad v. Assistant Sales Tax Officer, Akola - 1962 I SCR 279 = (AIR 1961 SC 1325) the question was whether 'betel leaves' fell within item 'vegetable' so as to earn exemption from sales tax and this Court held that word 'vegetable' had not been defined in the Act and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed it denoted those classes of vegetable matter which are grown in kitchen garden and are used for the table and did not comprise betel leaves within it and therefore betel leaves were not exempt from taxation". In State of W.B. v. Washi Ahmed, the issue is whether the expression vegetable takes in Green ginger also under Sch. I item 6 of Bengal Finance (Sales-tax) Act. The Supreme Court has held as follows at page 1639 : 'It will, therefore, be seen that the word "vegetable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Jogendranath v. I.T. Commissioner - AIR 1969 S.C. 1089 at p. 1094. In this case the question that was considered is whether the Hindu deity falls within the meaning of the word 'individual' under Section 3 of the Income-tax Act and can be treated as unit of assessment under that section. In the context of considering this issue, the Supreme Court observed at page 1094 as follows :- 'On a comparison of the provisions of the two Acts Counsel on behalf of the appellant centended that a restricted meaning should be given to the word 'individual' in Section 3 of the earlier Act. We see no justification for this argument. On the other hand, we are of the opinion that the language employed in 1961 Act may be relied upon as a parliamentary exposition of the earlier Act even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous. It is clear that the word "individual" in Section 3 of the ]922 Act includes within its connotation all artificial jurisdical persons and this legal position is made explicit and beyond challenge in the 1961 Act'. 9. Again in the decision reported in S.V.R. Cement Co. v. G.M.S. Pvt. Ltd. - AIR 1976 S.C. 2521, the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other aspect that remains for consideration is regarding the trade discount. The petitioner claimed allowance of a trade discount of 23% given to Usha Sales Private Ltd, Hyderabad and M/s. Nathoo Laljee, Hyderabad. At the outset it must be stated that the factum of giving 23% discount to them is not disputed. The primary authority as well as the appellate and revisional authorities held that uniform discount of 15% only should be allowed to these dealers also like others and there should be no exception regarding these two dealers. The revisional authority held that special discounts are not admissible under Sec 4 of the Central Excises and Salt Act, 1944 and therefore the trade discount of 15% only should be allowed. The learned single judge held that 15% discount is normally given and the higher discount of 23% in respect of two cases cannot be treated as normal trade discount and if two different sets of discounts are allowed, it will be tantamount to arriving at two wholesale cash prices and in this view the orders of the authorities have been confirmed, the learned Counsel for the appellant contends that there is no embargo on giving different rates of trade discount by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent types of discount that is given to different dealers is not precluded and there is absolutely no semblance of prohibition against such different discounts under the provisions of the Act. The assessable values can be different depending upon several factors and that cannot be a circumstance for denying the discount. In the event of escalation of prices the assessable values will be certainly different and in such a situation it cannot be countenanced that the excise duty will not be allowed because the assessable values are different. Therefore, the contention that in the event of different discounts the assessable values are different and as such the discount should not be given is devoid of merit. The learned Counsel for the respondent relied upon the decision of the Allahabad High Court reported in 1979 (4) E.L.T. 460 for the proposition that the discount must be uniform. The Allahabad High Court held that the deduction of discount cannot be given where it is not uniform. We are not able to discover any principle or rationale for such wide proposition and explanation to section 4 is not susceptible to such an interpretation. The principle of average discount propounded ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
