TMI Blog1984 (9) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... stake of law it paid excise duty in excess of what was lawfully due from it for the period 1st October, 1975 till November 1982. According to the Company, the assessable value of the goods manufactured by it during this period was arrived at by including therein the cost and charges of post-manufacturing operations and profits thereon, though the same were liable to be excluded therefrom. The amount purported to have been so paid in excess was Rs. 30,92,796.30P. Discovering this mistake as a result of certain decisions relating to the manner of fixing assessable value under Section 4 of the Act and the exclusion/inclusion of post-manufacturing expenses and profits from/in the said value, the Company filed with the excise authorities in Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 4 of the Act. Consequently, the only surviving question relates to the amount or the quantum of the sales-tax thus involved. This will be gone into and determined by the concerned excise authority after hearing the Company. 5. The next item is cash or trade discount. In relation thereto, the Supreme Court itself has in the same "P.M.E. Case" but by a subsequent clarificatory order dated 14th/15th November, 1983 reported in 1983 E.C.R. 2233D (S.C.) = 1984 (17) E.L.T. 329 (S.C.), observed thus : "1. Trade Discount : Discounts allowed in the trade (by whatever name such discount is described) should be allowed to be deducted from the sale price having regard to the nature of the goods, if established under agreements or under terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid observations of the Supreme Court. 7. Next and the last item is cost of packing. On this item contention of the learned Counsel Mr. Hidayatullah is that the packing here is primary packing as also durable and returnable by the buyer to the assessees in terms of section 4(4)(d)(i) of the Act and consequently the Company was entitled to a deduction of the cost thereof while determining the assessable value under section 4 of the Act. On the other hand, according to the learned Counsel Mr. Sethna for the respondents, the packing here is one in which the manufactured article is ordinarily sold in the course of wholesale trade to the wholesale buyer at the factory gate at the time of removal and consequently the Company will not be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered as not admitted by the respondents. 9. Before passing final orders, two questions survive viz. (a) limitation and (b) unjust enrichment. On Limitation, even assuming that the Company is found entitled to refund the entire or any particular amount, question then arising would be whether the claim in that behalf is or is not in time, with the further question as to what would be the period of limitation in that respect. On the question of limitation qua refund, we already have indication in the Supreme Court ruling in Shri Vallabh Glass Works Ltd. v. Union of India and Others - 1984 (16) E.L.T. 171 (S.C.) = 1984 E.C.R. 841 (S.C.), holding that limitation for refund of excise Duty paid by the assessee would be three years prior to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the directions of the learned Chief Justice and only after the decision of the learned third Judge will the final legal position on the question of unjust enrichment emerge so far as this High Court is concerned. Till then the excise authorities naturally will not be in a position to pass either way final orders on the refund claim and the revised price-lists. After the excise authorities consider the company's refund claim in relation to the aforesaid four items to which it now stands restricted and, after considering the said claim on merits as also thereafter in the light of the period of limitation involved in that behalf, the said authorities will have to, stay the passing of final orders till the question of unjust enrichment is decid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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