TMI Blog1991 (6) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... e Excise Authorities in respect of assessable value of the extruded tubes. The petitioners claimed that it was not permissible to take into account costs of post-extrusion operations while determining the assessable value of the aluminium extruded tubes. The post-manufacturing operations related to lacquering, coating and printing of the aluminium tubes, and also the costs of plastic caps fitted on the tubes. The Department on the other hand claimed that post-extrusion operations are part of the manufacturing activities and the costs should be included while determining the assessable value. 2. The petitioners filed Misc. Petition No. 771 of 1973 under Article 226 of the Constitution of India in this Court seeking a direction to the Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this Court. After the decision was recorded by the learned Single Judge on June 24, 1979, the Collector of Central Excise (Appeals) took up the appeals for hearing and by order dated December 21, 1979 directed refund of an amount of Rs. 9,70,989.15 in accordance with directions of the High Court. On December 12, 1980 the Government of India, Ministry of Finance served show cause notice upon the petitioners in exercise of powers vested under Section 36(2) of the Central Excises and Salt Act to show cause why the order passed by the Appellate Collector awarding refund should not be set aside. The show cause notice recites : "4. On examination of the records of the case the Central Government are tentatively of the view that the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of refund found due by the appellate authority should be deposited in this Court and the petitioners were permitted to withdraw the said amount on furnishing bank guarantee. It is not in dispute that the petitioners did withdraw the amount after furnishing guarantee. Shri Shah, learned Assistant Government Pleader appearing on behalf of the respondents, submitted that on July 3, 1987 the petition was placed before Mr. Justice Suresh and the hearing of the petition was adjourned sine die because the appeal preferred by the Department before the Supreme Court against judgment of the Single Judge delivered on July 24, 1979 in Miscellaneous Petition No. 771 of 1973 was pending along with the judgment in Metal Box's case. We called upon Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of jurisdiction in such circumstances is entirely uncalled for. The idea seems to be to prevent the petitioners from claiming refund merely because the appeal preferred by the Department is pending in the Supreme Court. In our judgment, the exercise of powers under Section 36(2) of the Excise Act is not bona fide. It was open for the Department to seek stay of operation of the order passed by this Court by filing appropriate proceedings before the Supreme Court, but either such application was not made or was turned down by the Supreme Court. Shri Shah was unable to enlighten us as to whether the Department applied for stay or whether the stay was refused by the Supreme Court. In these circumstances, in our judgment, issuance of show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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