9911796707
TMI Blog1990 (1) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... xcises and Salt Act, 1944. On March 28, 1977 it submitted a refund claim in respect of the duty stated to have been paid in excess on electric batteries during the period 12-7-1968 to 30-9-1975. The basis of the claim alleged was that under a mistake of law the petitioners had included post-manufacturing costs in the assessable value calculated under Section 4 (old) of the aforesaid Act. Legally post-manufacturing costs, it was contended, were liable to be excluded in determining the assessable value of the concerned item. The Assistant Collector rejected the claim on 2-11-1978. Aggrieved by that order, the petitioner filed an appeal on 30-3-1979 before the Appellate Collector, Central Excise, New Delhi who by his order dated 3-4-1982 allowed the appeal and modified the order passed by the Assistant Collector with certain directions which, as we will presently demonstrate, have a vital bearing on the controversy raised before use are, therefore, being extracted here : "In the circumstances, I consider that the proper course would be to allow the benefit in respect of the period of three years from the date of finalization of respective assessments. This benefit would, however, acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner for refund and for that purpose he asked the petitioner to submit various documents. 5. Not much progress appears to have been made towards finalization of the claim of the petitioner from 1984 till 1986 except the exchange of correspondence between the parties until 6-10-1986 when the Assistant Collector, Central Excise issued the impugned show cause notice the operative part of which has been extracted above. Immediately thereafter the petitioner approached this Court by means of this petition under Article 226 of the Constitution and prayed for its quashing. This Court, while entertaining the petition, directed the learned Senior Standing Counsel for the Union of India to file counter affidavit without admitting the petition and ordered the stay of further proceedings consequent upon the impugned notice. Thereafter counter and rejoinder affidavits were filed by the parties. 6. For the petitioner, Sri S.P. Gupta submitted that the contents of the impugned notice unmistakably demonstrate that the Assistant Collector, Central Excise, does not consider himself bound by the directions given by the Appellate Collector in the order of remand because of the subsequent Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having been issued by an authority which was rightfully seized of the matter upon remand of the case, no ground exists for quashing the same. As mentioned above, it will be open to the petitioner to take all such pleas in opposition to the show cause notice as may be permissible in law including the plea that the Assistant Collector was bound to follow the directions of the appellate authority even if in the opinion of the Assistant Collector the decision of the appellate authority may not be in consonance with the later decision of the Supreme Court in Bombay Tyre International Ltd. (supra). The opinion expressed by the Assistant Collector in the impugned notice that in view of the Supreme Court decision the petitioner's claim for refund was inadmissible in law, was obviously tentative and provisional. For otherwise there would be no sense in asking the petitioner to show cause against it. While showing cause against the notice it would be open to the petitioner to rely on all such material and precedents as may be relevant for identifying the post-manufacturing elements and for demonstrating that in point of fact such post-manufacturing expenses were actually incurred. 10. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -ad-missibility of P M E for the purposes of central excise duty. These observations are undoubtedly at complete variance with the decision of the Appellate Collector who has observed: "I find that the appellants are correct inasmuch as the excess payment made as a result of inclusion of post-manufacturing charges is refundable under common law and Rule 11 has no application in the matter." 13. These observations make it necessary to lay down the extent of jurisdiction which is vested in the Asstt. Collector. The Assistant Collector was required to comply with the directions of the Appellate Collector. As an authority subordinate to the Appellate Collector, it was not competent to the Assistant Collector to take a different view and hold that in view of the decision of the Supreme Court the refund claim of the petitioner on account of the post-manufacturing elements was not admissible in law. So long as the order of the Appellate Collector was not set aside by any court or superior authority the Assistant Collector had no option but to scrupulously follow the directions issued by the Appellate Collector, even if the view expressed by the Appellate Collector was contrary to the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the Appellate Collector as far back as 3-4-1982, the Asstt. Collector has yet not been able to comply with that direction. The delay has been sought to be explained in the counter affidavit by putting the blame on the petitioners. On a perusal of the affidavits exchanged between the parties, however, we do get an impression prima facie that matters are being delayed at the end of the Asstt. Collector rather than the petitioners who are naturally interested in expediting the matter. Interested as they are in the refund, it is hardly likely that the petitioners would cause hinderance in the finalization of the proceedings. 16. In the premise, the petition succeeds and is allowed in part. The Assistant Collector, Central Excise, I D O Allahabad is ordered to comply with the directions issued by the Appellate Collector in his order dated 3-4-1982 in accordance with law keeping in view observations made hereinabove within a period of four months from the date on which a certified copy of this order is submitted before him by the petitioner. The Assistant Collector shall indicate to the petitioner within one month from today what further documents or material the petitioners ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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