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Shri Krishna Bottlers Private Ltd. Vs. Assistant Collector of Central Excise, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 5033 of 1982
Judge
Reported in1984(3)ECC362; 1983(12)ELT674(AP)
ActsCentral Excise Rules, 1944 - Rules 173C and 206; Central Excise Act, 1944 - Sections 4, 35, 35A and 36
AppellantShri Krishna Bottlers Private Ltd.
RespondentAssistant Collector of Central Excise, Hyderabad and ors.
Appellant AdvocateV. Jogayya, Adv.
Respondent AdvocateK. Subrahmanya Reddy, Standing Counsel, for the Central Government
Excerpt:
.....removal and for differences between date in gate-pass and date of removal--assessee filing writ petition against delayed upward revision of price list and seizure and confiscation of conveyance--maintainability of petition--existence of alternative remedy--constitution of india, article 226--central excise rules, 1944, rules 173c, 206. - - even though such removal of the goods may be in accordance with the earlier instructions of the respondents and well-established practice, the said practice which is detailed in the petitioner's affidavit is at variance with the requirement of law......1944 hereinafter called 'the rules', the petitioner-company has been submitting from time to time price lists for approval by the proper officer i.e. the assistant collector of central excise. the central government has been instructing the central excise authorities to dispose of the applications for approval of the price lists within fifteen days from the date of receipt of the price lists. the petitioner submitted two such lists as early as on 18-1-1982 to the assistant collector, but he did not pass any orders thereon prior to 5-7-1982. the assistant collector neither called for any information nor gave any notice of hearing to the petitioner; nor did he return the price lists for rectification of the defects or omissions, if any. on 21-1-1982 the assistant collector passed orders.....
Judgment:

K. Madhava Reddy, A.C.J.

1. This Writ Petition is filed by a manufacturer of aerated water and other beverages which are subject to duty under the Central Excise Tariff. The goods manufactured by the Petitioner-Company are to be cleared on payment of duty under a document in the prescribed form known as 'G.P.I. Form'. He has been paying duty ever since it was imposed on aerated waters and other beverages i.e., since 1970. Among the various entries to be made in the G.P.I. Form, it is the case of the petitioner, that one such entry requires the assessee to note down the time of removal of the goods from the Factory. It is further case of the petitioner that the Company was advised that the time of removal to be noted by them in the gate-pass was the time at which the goods were removed out of the constructed factory premises and loaded on the trucks and that 'it was not obligatory to remove the goods out of the factory premises at the time noted in accordance with the advice mentioned in previous item' and that in addition thereto, the actual date and time when the truck loaded with the goods moves out of the factory premises was also to be noted. According to the petitioners, the premises of the Petitioner-Company include, besides the constructed areas, a big compound and a few platforms constructed inside the said compound but that entire area does not constitute the factory area. The petitioner has been following this practice as per the advice of the Central Excise authorities. But in the year 1979 the Central Excise authorities reviewed the aforesaid procedures and advised some modifications which were recorded by the Company's Chief Accountant Sri K. A. Nangoli and communicated through their letter No. Ref. C.A./CEC/354/79, dated 22-12-1979 to the Assistant Collector of Central Excise, Hyderabad by way of confirmation of what the Company was instructed to do. He avers that the contents of the said letter were never disputed. While so, on 18-7-1982 three Inspector of Central Excise, respondents 2, 3 and 4 working in the Kavadiguda Range Office, visited the Company, is premises at about 6-30 A.M. and made certain suggestions about the values of the goods produced on the basis of which the Company should pay the duty on the goods. Those suggestions were not acceptable to the petitioners as they were illegal. According to the petitioner, those suggestions were made as a sequel to what transpired earlier with regard to the fixation of the price of the goods produced by the Company. The petitioner states that in accordance with the provisions of Rule 173-C of the Central Excise Rules, 1944 hereinafter called 'the Rules', the Petitioner-Company has been submitting from time to time price lists for approval by the proper officer i.e. the Assistant Collector of Central Excise. The Central Government has been instructing the Central Excise authorities to dispose of the applications for approval of the price lists within fifteen days from the date of receipt of the price lists. The petitioner submitted two such lists as early as on 18-1-1982 to the Assistant Collector, but he did not pass any orders thereon prior to 5-7-1982. The Assistant Collector neither called for any information nor gave any notice of hearing to the petitioner; nor did he return the price lists for rectification of the defects or omissions, if any. On 21-1-1982 the Assistant Collector passed orders revising the price lists upwardly as a consequence of which the petitioner was rendered liable to pay duty on the basis of higher values than those submitted by the Petitioner-Company. In view of the delayed upward revision of the price lists submitted by the petitioner, the petition could not collect the additional duty from his customers. The petitioner contends that this upward revision of prices beyond the time prescribed and after an inordinately long delay without giving notice of hearing, as envisaged by Sub-rule 7 of Rule 173-C of the rules is illegal and a nullity. Consequently the Petitioner-Company Cannot be called on to pay excise duty on the value arrived at as per the revised price lists ordered by the Assistant Collector of Central Excise. The petitioner alleges that since on the morning of 18-7-1982 the petitioner refused to pay the duty as per the revised values of the goods as suggested by respondents 2, 3 and 4, they effected the seizure of twelve trucks fully loaded with the goods produced by the Petitioner-Company on the ground that the goods were removed out payment of excise duty and that while the gate-passes were dated 17-7-1982, the goods were sought to be removed on 18-7-1982. The petitioner therefore contends that the seizure is illegal and is motivated. He therefore seeks a writ of Mandamus to declare the revision of the price lists ordered by the Assistant Collector as illegal and without jurisdiction and that the seizure of the trucks together with the goods therein effected on 18-7-1982 is illegal, arbitrary and without jurisdiction and for a declaration that the Petitioner-Company is entitled to seek quantitative discounts in the price lists submitted by it. We have heard the petitioner at length and we are not persuaded to hold that this court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India in a matter such as this. So far as revision of the price lists is concerned, under Rule 173-C of the Rules the assessee is required to file the price list of the goods assessable. The price list on the basis of which the value of the goods is to be assessed requires the prior approval of the proper officer. For this purpose, the assessee is required to submit the price list. It is open to the proper officer to approve the price list with such modifications as he may consider necessary so as to bring the value shown in the said list to the correct value for the purpose of assessment as provided in Section 4 of the Central Excises and Salt Act, 1944. Of course, where the price list is sought to be modified and the prices shown by the assessee therein are not acceptable to the proper officer, under Sub-rule 7 of the Rule 173-C of the rules the assessee has to be given an opportunity to put forward his case and heard in person if he so desires before the price list is modified by the proper officer. Against any order made under Rule 173-C revising the price list, the assessee has a right of appeal under Section 35 of the Central Excises and Salt Act. There is also a further revision provided under Section 35-A of the Act to the Central Board of Excise and Customs and under Section 36 to the Central Government. The petitioner has thus an effective remedy provided to him under the statute. We therefore do not propose to express any opinion on the points raised in this behalf in this writ petition. The writ petition may pursue his remedies under the statute.

2. So far as the other contention of the petitioner regarding the seizure of the goods and the trucks is concerned, this forms a distinct cause of action for him and actually a separate writ petition ought to have been filed in respect of this grievance of the petitioner and ought not to have been clubbed with the prayer for quashing the revised price list. We will not deal with the second prayer in the writ petition. The two orders of the Central Excise Authorities are in no way interlinked. Only the petitioner seeks to link them by making an allegation that since the petitioner did not agree to pay the duty in accordance with the revised price lists, the Central Excise authorities proceeded to seize the goods. Even though such removal of the goods may be in accordance with the earlier instructions of the respondents and well-established practice, the said practice which is detailed in the petitioner's affidavit is at variance with the requirement of law. It is not disputed that the goods removed have to be accompanied by a gate-pass evidencing the payment of duty. Such goods have to be removed with in the time specified therein. The Central Excise authorities could not have given any instructions at variance with the Rules. The time within which the goods have to be removed from the factory premises is noted in the gate-pass. Prima facie, we are unable to accept that there were any instructions issued by the Central Excise authorities to remove the goods even on the next day. Be that as it may, if infact there were any such instructions and those instructions were being observed all these years, then it is for the appellate authority to consider whether the contravention of the Rule should have been condoned, and not for this court to issue any writ. It is not denied that against any order of seizure, the petitioner has a specific remedy by way of an appeal and revision provided under the statute. Prima facie, the action of the respondent being in conformity with the Rules this Court cannot issue any writ disapproving their action on the basis of same instructions said to have been issued by the Central Excise authorities. However, we express no opinion as to whether the seizure made on 18-7-1982 is legal or illegal. All that we can say is that it is not without jurisdiction. The revision authority is the proper authority to consider the legality or propriety of the seizure effected on 18-7-1982. We have no doubt that those authorities, when a proper appeal or revision is presented to them as provided under the statute, would consider these matters and pass appropriate orders. The petitioners has rushed to this court alleging that although he has made some representation in this behalf to the Excise Collector, the Central Board of Excise and Customs and the Central Government, they have not taken any action. A mere representation is not a substitute for appeal or revision. It does not amount to exhausting the alternative remedy provided under the statute. Evidently, the authorities concerned did not choose to act on the representation because the aggrieved party has a specific alternative remedy by way of an appeal and revision under the statute. It is only on this ground we refuse to interfere with the impugned order in exercise of our jurisdiction under Article 226 of the Constitution.

3. As regards the petitioner's request that the petitioner-Company is entitled to seek quantitative discount in the payment of duty on the basis of the price list submitted by him, we may state that it necessarilly depends upon the decision by the competent authority as to whether the upward revision of the price lists was correctly made or not. In these circumstances, we see no reason to admit this writ petition.

4. However, we find that Sub-rule 3 of the Rule 206 of the Rules provides in case of all seizures as follows :-

'Anything seized by a Central Excise Officer may, pending the orders of the adjudicating Central Excise Officer, be released to the owner on taking a bond from him in the proper form, with such security as the Collector may require.'

The provision is intended to ensure the payment of duty and the penalty that may be imposed and to see that the goods or the property seized are available in the event of a final adjudication adverse to the assessee. In the instant case, the duty liable to be paid on the aerated waters loaded in the twelve trucks must be ensured. Having regard to the fact that the petitioner-Company is a Company having its factory premises within the territorial jurisdiction of the respondents, the appropriate order to be made with regard to the payment of duty is to direct the petitioner to pay the entire excise duty payable on the said goods on the basis of the value arrived at with reference to the revised price lists. The learned Standing Counsel for the Central Government states that the twelve trucks which were loaded with the goods and which were also seized are liable for confiscation. To ensure their production if and when an order adverse to the petitioner is made finally, the petitioner shall execute a bond to produce them as and when called upon to do so and also undertake not to alienate or in any way tamper with the said trucks. On filing of such a bond and payment of duty, the respondent shall release the goods and trucks for the use of the petitioner-factory. A direction to the above effect shall issue.

5. Subject to the above direction the writ petition is dismissed.


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