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Malwa Vanaspati and Chemical Co. Ltd. Vs. Union of India (Uoi), Through Secretary, Ministry of Finance - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petition No. 68 of 1975 connected with M.P. No. 220 of 1975
Judge
Reported in1979(4)ELT243(MP)
ActsCentral Excise Act - Sections 2 and 4; Constitution of India - Article 226(3)
AppellantMalwa Vanaspati and Chemical Co. Ltd.
RespondentUnion of India (Uoi), Through Secretary, Ministry of Finance
DispositionPetition allowed
Cases Referred(Gwalior Rayon Silk Mfg. Co. Ltd. v. K.K. Khosla Ltd.
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - according to the petitioners the value for the purpose of ad valorem duty must exclude the.....orderg.l. oza, j.1. this petition and misc. petition no. 220 of 1975 have been filed by the petitioner challenging an order passed by the assistant collector, central excise and the superintendent central excise respectively. as both these petitions involve common grounds the present order shall also govern the disposal of misc. petition no. 220 of 1975. 2. 1 he petitioner is a limited company incorporated under the companies act and they have a factory at indore where they manufacture hydrogenated oil commonly known as 'vanaspati'. the vanaspati so manufactured is subject to duty payable under the central excise and salt act, 1944 (hereinafter referred to as 'the act'). it is alleged by the petitioner that duty is charged at the rate prescribed under item 13 of the first schedule of the.....
Judgment:
ORDER

G.L. Oza, J.

1. This petition and Misc. Petition No. 220 of 1975 have been filed by the petitioner challenging an order passed by the Assistant Collector, Central Excise and the Superintendent Central Excise respectively. As both these petitions involve common grounds the present order shall also govern the disposal of Misc. Petition No. 220 of 1975.

2. 1 he petitioner is a limited company incorporated under the Companies Act and they have a factory at Indore where they manufacture hydrogenated oil commonly known as 'Vanaspati'. The Vanaspati so manufactured is subject to duty payable under the Central Excise and Salt Act, 1944 (hereinafter referred to as 'the Act'). It is alleged by the petitioner that duty is charged at the rate prescribed under Item 13 of the First Schedule of the Act. It is further alleged that the goods the petitioners manufacture are packed and sold in metal containers which are durable in nature and are returnable to the petitioners.

3. Before 1st March 1969 the Excise duty payable by the manufacturers of vegetable product under Item 13 was leviable by weight per quintal of the excisable goods. By Finance Act of 1969 which came into force on 1st March,1969, Item 13 of the First Schedule was amended so that from that date the excisable duty leviable was made ad valorem. Metal containers are also subject to excise duty under Item 46 and this duty is also leviable ad valorem and this duty has been made chargeable for the first time with effect from 1st March, 1970.

4. Under Rule 173-A of the Rules framed under the Act, the Central Government has made the provision contained in Chapter VIIA of the aforesaid Rules applicable to vegetable factories. Under Rule 173-A the petitoners are required to file a price list of goods assessed ad valorem for the purpose of determination of value in accordance with Section 4 of the Act. According to the petitioners the value for the purpose of ad valorem duty must exclude the value of the container as well as the the cost of freight and according to the petitioners this is clear from the provisions contained in Section 2(d) which defines 'excisable goods' and Section 2(f) which defines 'manufacture'. It is further alleged that Item of the First Schedule refers to 'vegetable product' and it has been explained in this Item. It is therefore contended by the petitioners that in view of Section 3 which is the charging Section, and Section 4 which talks of price, the duty could only be charged on the price of vegetable product manufactured by the petitioners as it will exclude the freight and the value of the container. According to the petitioners, respondent No. 3 by his orders, dated 29th March, 1975 rejected the contention of the petitioners and refused to modify the price list. The petitioners therefore have filed the present petition.

5. It was contended on behalf of the petitioners, that the excisable goods which fall within the description contained in Item 13 are chargeable with duty in accordance with Section 3 of the Act. For the purpose of ad valorem duty the value of the excisable goods has to be determined in accordance with the provisions contained in Section 4.

6. According to learned counsel for the petitioners the goods that are chargeable under Item 13 are vegetable product commonly known as vanaspati and this does not mean vanaspati packed in the containers. He also contended that the duty is charged on the value at the time of its delivery from the manufacturer's factory and thus, freight, if included in the price, cannot be considered to be the value of the excisable goods. He also contended that the definition of 'manufacture' contained in Section 2(f) clearly indicates that wherever the Legislature intended packing or tinning to be included in the process of manufacture they have clearly indicated it. Thus, in cases where it is not indicated it could not be said that putting the vegetable product in the containers is part of the manufacturing process and therefore the price of the container will be included while assessing the value for the purpose of computation of duty. Learned counsel also contended that this is also clear from Item 13 which prescribes duty on vegetable product; and if the Legislature had intended it would have been clearly provided that vegetable product tinned in the containers would be chargeable under Item 13. Learned counsel, in support of his contentions, placed reliance on the decision reported in Union of India v. Delhi Cloth and General Mills, MR. 1963 S.C. 791 : In re-Sea Customs Act. AIR 1963 S.C. 1760; Orient Paper Mills Ltd v. Union of India MR. 1967 S.C. 1564; Atic Industries Ltd., v. H.H. Dave Asstt. Collector of Central Excise. MR. 1975 S.C. 960; and the unreported decisions of the Bombay High Court in Indian Tobacco Co. Ltd., v. Union of India Misc. petition No. 593 of 1974, decided on 15-12-75 and in Union of India v. Mansingka Industries Private Ltd., First Appeal No. 257 of 1972 decided on 6-9-1974=1979 E.L.T. (J 158) Learnedcounsel also referred to a decision of the Calcutta High Court printed at p. 39D in the April 1978 issue of the Central Excise and Customs Journal (Hindustan Pilkington Glass Works Ltd., v. Superintendent Central Excise 1978 E.L.T. (J 229)

6. Learned counsel for the respondents contended that the vegetable product manufactured by the petitioners which is commonly known as vanaspati is well known to be sold in containers and therefore when duty is charged on the manufacture of Vanaspati the process of Manufacture shall include its packing and tinning and it could not therefore be contended that the value of the container should not be included in the price for the purpose of charging excise duty, as according to learned counsel the definition of 'manufacture' in Section 2(f) of Act itself indicates that 'manufacture' will mean process incidental or ancillary to the completion of a manufactured product. Learned counsel therefore contended that the containers' price, therefore, will fall within the value of the commodity chargeable under Item 13 of the First Schedule.

7. Learned counsel for the respondents also contended that the petitioners have filed this petition against an order passed by respondent No. 3 rejecting the contentions advanced by the petitioner. But a petition could not be entertained in view of the alternative remedy as under the provisions of the Act after a particular assessment is effected the petitioner have a right of appeal and thereafter a remedy of a revision to the Central Government. Thus under Clause (3) of Article 226 of the Constitution this would operate as a bar.

8. Learned counsel for the petitioners contended that the petitioners have to submit the price list every now and then and on the basis of the price list the assessments are made. The petitioners raised these contentions before respondent No. 3 so that the question may be decided. In fact, against every assessment which is done on a number of occasions if the appeals are filed it would only mean a repetition in the process and in fact in a number of cases of assessment for the period appeals were filed but they were not disposed of for long and ultimately during the pendency of these petitions those appeals were decided. He, therefore, contended that when respondent No. 3 refused to accept the contentions of the petitioners, against such an order no appeal could be competent. They had to wait for every assessment and in that manner there is no alternative remedy so far as the present order which is challenged in this petition is concerned. Learned counsel placed reliance on the decision of this Court in Gwalior Rayon Silk Mfg. Co. Ltd. v. V.K.K. Khosla ITO indore, Misc. petition No. 178 of 1969, D/15-7-78 (Indore).

9. The main questions, therefore, that arise in the present petition are :

(i) while assessing the duty whether the value of Vanaspati shall include the freight and the value of the container; and (ii) whether the present petition is maintainable in view of Clause (3) of Article 226 of the Constitution.

10. Section 2(d) of the Act provides;

' 'excisable goods' means goods specified in the First Schedule as being subject to a duty of excise and includes salt;'

This provision provides that excisable goods means goods specified in the First Schedule as being subject to duty of excise. The goods in question, i.e., Vanaspati, are chargeable under Item 13 of the First Schedule;

'13 VEGETABLE PRODUCT'Description of goods Rate of dutyVegetable Product :'Vegetable product' means any Vegetable oilor fat which, whether by itself or inadmixture with any other substance, has byhydrogenation or by any other process beenhardened for human consumption.' 10% ad valorem.

By this item it is indicated that duty is chargeable on vegetable products and it has been defined as vegetable oil or fat which by itself or in admixture with any other substance by process of hydrogenation or by other process has been hardened for human consumption. Thus the product which is chargeable to duty under this item is hardened vegetable oil or fat for human consumption which has been hardened either alone or in admixture by hydrogenation process or any other process. This therefore clearly indicates that the goods that are chargeable under this item are those which are described as vegetable product commonly known as vanaspati which is hardened for human consumption by the process indicated. It, therefore, could not be doubted that Item 13 does not contemplate this product to be in a container or in any particular condition except that it is hardened for human consumption.

11. It was contended by learned counsel for the respondents that to our common knowledge this product is sold in containers of various sizes. In decisions referred to by learned counsel for the petitioners this argument was repelled on the ground that this can even be despatched and transported in any other manner than the one suggested. What appears to be is that it is not material how this product is sold in the market or transported from one place to another; the material question is on what the duty is leviable, Section 3 of the Act is the charging section. It provides :-

'3(1) There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India, and a duty on salt manufactured in, or imported by land into, any part of India as, and at the rates, set forth in the First Schedule.

(1A) The provisions of Sub-section (1) shall apply in respect of all excisable goods other than salt which are produced or manufactured in India by, or on behalf of Government, as they apply in respect of goods which are not produced or manufactured by Government.

(2) The Central Government may, by notification in the Official Gazette, fix, for the purpose of levying the said duties, tariff value of any article enumerated, either specially or under general headings, in the First Schedule as chargeable with duty ad valorem and may alter any tariff value for the time being in force;

(3) Different tariff value may be fixed for different classes or descriptions of the same article.'

This section clearly provides that duty shall be levied and collected on excisable goods which are produced or manufactured.

12. It was also contended that the definition of 'manufacture' provided in Section 2(f) of the Act indicates that ancillary process of packing and tinning will also form part of the process of manufacture; whereas learned counsel for the petitioners, on the other hand, contended that in this definition where the Legislature intended to include the process of packing and tinning it has specifically so provided and as in the case of the product in question, i.e. vegetable product, if it has not been so provided, it could not be said that the process of putting the goods in containers or tins is a process of manufacture. Section 2(f) provides the definition of 'manufacture' :-

'2(f) 'manufacture' includes any process incidental or ancillary to the completion of a manufactured product; and

(i) in relation to tobacco, includes the preparation of cigarettes, cigars, cheroots, biros, cigarette or pipe or hookah tobacco, chewing tobacco or snuff, and

(ii) in relation to salt, includes collection, removal, preparation, steeping, evaporation, boiling or any one or more of these processes, the separation or purification of salt obtained in the manufacture of saltpeter, the separation of salt from earth or other substance as to produce elementary salt and excavation or removal of natural saline deposits or efflorescence;

(iii) in relation to patent or proprietary medicines as defined in Item No. 14E of the First Schedule and in relation to cosmetics and toilet preparations as defined in Item No. 14F of that schedule, includes the conversion of powder into tablets or capsules the labelling or re-labelling of containers intended for consumers and re-packing from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer;

(iv) in relation to goods comprised in item No. 18A of the First Schedule, includes, sizing, beaming, warping, wrapping, winding or reeling, or any one or more of these processes, or the conversion of any form of the said goods into another form as such goods; and the word 'manufacturer' shall be construed accordingly and shall include not only a person who employs hired labour in the production of manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account.'

It is no doubt true that in the first part of the definition it has been stated that it includes any process incidental or ancillary to the completion of a manufactured product; but it is also clear that in sub-clause (iii) pertaining to medicines and cosmetics it has been indicated that 'manufacture' shall include even packing, re-packing, labelling, re-labelling or any other treatment to render the product marketable to the consumer. It is therefore clear that where the Legislature intended to include in the term 'manufacture' any process to make the commodity marketable to the consumer it has been specifically provided for.

13. It cannot be disputed that the commodity which is taxable here, i.e. vegetable product commonly known as Vanaspati, is manufactured in the manner in which it is indicated in Item 13. What further is contemplated is the process to make the commodity marketable. Even according to the contention advanced by learned counsel for the respondents, if the Legislature had intended this process, which according to Learned counsel for the petitioners is post-manufacturing process, to be included in the term 'manufacture' it would have been specifically provided as has been done in the case of sub-clause (iii) of the definition of 'manufacture' in Section 2(f). The 'process incidental or ancillary to the completion of a manufactured product' if is analysed, it could not be doubled that the manufactured product is vegetable product, i.e. vanaspati. In getting this product, packing or putting it in containers could not be said to be a process incidental or ancillary to the completion of the manufactured product as the manufactured product chargeable under Item 13 is Vanaspati orVegetable product. Apparently, therefore, this contention advanced by learned counsel for the respondents could not be accepted.

14. In Union of India v. Mansingka Industries, 1979 E.L.T. (J 158) before the Bombay High Court a similar contention was advanced;

'Mr. Nain has also referred to Section 2(f) of the Act of 1944 which defines 'manufacture' and has shown to us that where it was intended that packaging should be included as a process of manufacture, the Legislature has said so. In sub-clause (iii) to Section 2(f) there is a provision that in relation to patent or proprietary medicines as defined in Item No. 14E as also in relation to cosmetics and toilet preparations as defined in Item No. 14F of the First Schedule to the Act of 1944 manufacture would include labelling or re-labelling of containers intended for consumers and re-packaging from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumers. This shows that in the case of medicines, the packaging thereof is by statute considered to be a part of the manufacturing process. It is a matter of common knowledge that patent and proprietary medicines are sold in bottles, tins and foil packing and cosmetics like beauty creams or talcum powder or lotions are also sold in some kind of containers.'

It is, therefore, clear that putting the vegetable product in the containers or tins could not be said to be a part of the manufacturing process and the goods that are chargeable with duty under Item 13 are the vegetable products commonly known as Vanaspati not contained in any container or tin.

15. The duty is to be assessed ad valorem on the basis of the value of the excisable goods. Section 4 of the Act provides :

'4. Where under this Act any article is chargeable with duty at a rate dependent on the value of the article, such value be deemed to be :

(a) the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold at the time of the removal of the article chargeable with duty from the factory or any other premises of manufacture or production for delivery at the place of manufacture or production, or if a wholesale market does not exist for such article at such place, at the nearest place where such market exists, or

(b) where such price is not ascertainable, the .price at which an article of the like kind and quality is sold or is capable of being sold by the manufacturer or producer, or his agent, at the time of the removal of the article chargeable with duty from such factory or other premises for delivery at the place of manufacture or production or if such article is not sold or is not capable of being sold at such place, at any other place nearest thereto.

Explanation -- In determining the price of any article under this section no abatement or deduction shall be allowed except in respect of trade discount and amount of duty payable at the time of the removal of the article chargeable with duty from the factory or other premises aforesaid.

It is not in dispute that for the purpose of this petition we are concerned with the provisions contained in Section 4 as it stood before it was amended by the Central Excise and Salt (Amendment) Act, 1973. This provision provides for assessment of value on the basis of which the duty is to be computed. The scheme of this section clearly indicates that the value for the purpose of duty would be the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold at a time when this article is chargeable to duty, i e. removal of the article from the factory or any other premisesor the manufacture or production for delivery at the place of manufacture or production; and if such a price is not ascertainable, then Clause (b) of this section provides for an assessment of the price on the basis of the price of an article of the like kind and quality capable of being sold. The Explanation to this section provides that no abatement or deduction shall be allowed except in respect of trade commission and the amount of duty payable at the time of removal of the article.

16. The question about the value of the article for the purpose of assessment of duty came up for consideration before their Lordships of the Supreme Court in A.K. Roy and Anr. v. Voltas Ltd , AIR 1973 S.C. 225 and in this decision, following the decision in Union of India v. Delhi Cloth and General Mills, AIR 1963 S.C. 791 it was observed :

'Section 4 of the Act therefore provides that the real value should be found after deducting the selling cost and selling profits and that the real value can include only the manufacturing cost and the manufacturing profit. The section makes it clear that excise is levied only on the amount representing the manufacturing cost plus the manufacturing profit and excludes post-manufacturing operation, namely selling profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyer for a period of time and that the price has to be fixed for delivery at the factory gate thereby eliminating . freight, octroi and other charges involved in the transport of the articles.'

Learned counsel for the petitioners contended that these observations clearly indicate what should be the real value of the goods for the purpose of assessment of duty. It was also contended by the learned counsel that in fact excise duty is duty on manufacture and not sale and therefore, if the commodity is sold in containers or packed in tins, the expenditure incurred on this process and the freight and transport will be post-manufacture process and could not be included in the real value for determination of the price, for the purpose of computation of duty under Section 3 of the Act. In (Supra) their Lordships .observed :

'Excise duty is on the manufacture of goods and not on the sale. Mr. Fathak is therefore right in his contention that the fact that the substance produced by them at an intermediate stage is not put in the market would not make any difference'.

while considering the question of determining the value of goods for the purpose of excise their Lordships observed :

'The value of the goods for the purpose of excise must take into account only the manufacturing cost and the manufacturing profit and it must not be loaded with post-manufacturing cost or profit arising from post-manufacturing operation. The price charged by the manufacturer for sale of the goods in wholesale would, therefore, represent the real value of the goods for the purpose of assessment of excise duty. If the price charged by the wholesale dealer who purchases the goods from the manufacturer and sells them in wholesale to another dealer were taken as the value of the goods, it would include not only the manufacturing cost and the manufacturing profit of the manufacturer but also the wholesale dealers selling cost and selling profit and that would be wholly incompatible with the nature of excise. It may be noted that wholesale market in a particular type of goods may be in several tiers and the goods may reach the consumerafter a series of wholesale transactions. In fact the more common and less expensive the goods, there would be greater possibility of more than one tier of wholesale transactions. For instance, in a textile trade, a manufacturer may sell his entire production to a single wholesale dealer and the latter may in his turn sell the goods purchased, by him from the manufacturer to different wholesale dealers at State level, and they may in their turn sell the goods to wholesale dealers at the district level and from the wholesale dealers at the district level the goods may pass by sale to wholesale dealers at the city level and then, ultimately from the wholesale dealers at the city level, the goods may reach the consumers. The only relevant price for assessment of value of the goods for the purpose of excise in such a case would be the wholesale cash price which the manufacturer receives from sale to the first wholesale dealer, that is, when the goods first enter the stream of trade. Once the goods have entered the steam of trade and are on their onward journey to the consumer, whether along a short or a long course depending on the nature of the goods and the conditions of the trade, excise is not concerned with what happens subsequently to the goods. It is the first immediate contact between the manufacturer and the trade that is made decisive for determining the wholesale cash price which is to be the measure of the value of the goods for the purpose of excise. The second or subsequent price, even though on wholesale basis, is not material. If excise were levied on the basis of second or subsequent wholesale price, it would load the price with a post-manufacturing element, namely, selling cost and selling profit of the wholesale dealer, that would be plainly contrary to the true nature of excise as explained in the Voltas case (supra). Secondly, this would also violate the concept of the factory gate sale which is the basis of determination of value of the goods for the purpose of excise.'

In this decision their Lordships clearly stated that] where the manufacturer sells his goods to a wholesale dealer the wholesale cash price charged by the manufacturer minus the trade discount would represent the value of goods for the purpose of assessment of excise.

17. In this view of the matter, therefore, where the vegetable product, manufactured by the petitioners is sold in wholesale but is sold in containers i and the price that they charge from the wholesale dealer includes the price of the containers and freight or transport charge for the purpose of excise duty the price would be the price that they receive from the wholesale dealer after deducting the price of the container and the transport and freight charges.

18. This question came up for consideration before the Bombay High Court in Indian Tobacco Co. Ltd. v. Union of India, Misc. petition No. 293 of 1974 D/l 5.12.75, and their Lordships held that marketing and distribution expenses, advertising expenses, freight on cigarette and smoking mixture, interest on the wholesale price charged to its wholesale dealer will have to be excluded in order to arrive at the value for the purpose of collection of duty.

19. The question about the cost of packing and freight and transport charges came up for consideration before the Calcutta High Court in Hindustan Pilkington Glass Works Ltd., v. Superintendent Central Excise 1978 E.L.T. (J 229) wherein it was observed;

'Thus it is clearly established in view of the decisions referred to herein above that the cost of packing, freight and transport charges are post-manufacturing cost and cannot be included in determining the assessable value of the excise duty of the goods.'

20. Learned counsel for the respondents referred to a decision of the Madras High Court in Aurofood Private Ltd., v. Government of India and Ors. 1978 E.L.T. (J 673) wherein it was held that the value of the tin containerswill have to be included in assessing the value for excise. In that decision the learned judge observed;

'What is stressed by the learned counsel for the petitioner is the article chargeable with duty alone would be subject to excise-duty. Not any other article. This argument ignores the full effect of deeming clause. As to the importance of the deeming clause, it has been held in East and Dwelling Co. Ltd., v. Finishbufg Council (1951)(2) All E.R. 587 (N.L. 589 thus : 'Lord Asquith stated : 'if you are bidden to treat an imaginary state of affairs, as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents, which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corrolories of that state of affairs. Having regard to the principle extracted above, once it is deemed, it should be for all purposes. The said removal must be for the purpose of delivery. The excisable article here, viz, biscuits are not delivered at the factory gate (underlining mining) without the tin containers. Therefore, their value will have to be necessarily included. In other words, the wholesale price at the factory gate alone, is relevant. This came up for discussion in Special Civil Application No. 858 of 1974 of Gujarat High Court....'

Unfortunately, in this decision the learned Judge did not consider the decisions of their Lordships of the Supreme Court referred to above although a reference was made to these cases and it was observed :

'In all the cases cited, viz., A.K. Roy v. Voltas Ltd., AIR 1973 Supreme Court 225; Atic Industries v. Assistant Collector, Central Excise, AIR 1975 Supreme Court 960; I.T.C. Ltd., v.. Union of India, 1977 Taxation Law reports 2060, Telco Ltd. v. S.N. Guha, 1977 Taxation Law Reports 2189 : and Hind Lamps v. Union of India, 1977 Taxation Law Reports 2299, the question in the form in which it has arisen before me did not come up for consideration.'

With respect, 1 do not think this decision lays down the correct law.

21. In our opinion, therefore, the price of the containers and the freight and transport charges could not be included in the price under Section 4 of the Act for determining the excise duty.

22. As regards the objection on the ground of Clause (3) of Article 226 of the Constitution it was contended by learned counsel for the petitioners that the order which is challenged in this petition is not an order of assessment. Orders will only be passed when the assessments are finalised and as stated in some of such cases appeals were preferred which it appears have been disposed of. It was contended that the order which is the subject matter of this petition will ultimately cover a number of orders of assessment and by pursuing those appeals the question of law raised could not be decided. Section 35 of the Act provides for appeals under the Act and it is no doubt true that this provision provides for appeals against any decision or an order and Section 36 provides for revisions. The order against which the present petition has been filed is an order passed by the Assistant Collector Central Excise, Indore, by this order the Assistant Collector negatived the contentions advanced by the petitioners and did not approve of the price list submitted by the petitioners for the purpose of assessment of duty. It could not be disputed that the questions raised by the petitioners are of a general nature not limited to any particular assessment and as stated by learned counsel for the petitioners, if thepetitioners are to follow the procedure of appeals every time the price list is submitted and an order is passed, an appeal will have to be filed and it is not disputed that in fact a number of such appeals were filed but the question that was raised pertaining to the interpretation of the provisions of the Act could not be decided. It is also not in dispute that the liability of the petitioners to pay excise duty arises as and when the goods are manufactured and, therefore, for covering all such cases there is no specific provisions by which the petitioners could get the question decided. In this view of the matter, therefore, it was contended that to get the law settled on the question of interpretation no specific remedy was available and on this ground it was contended that the bar of alternative remedy will not apply. Learned counsel for the petitioner placed reliance on a decision of this Court in Misc. Petition No. 178 of 1969 (Gwalior Rayon Silk Mfg. Co. Ltd. v. K.K. Khosla Ltd., Indore decided on 15-7-1978 (Indore). In this decision Clause (3) of Article 226 of the Constitution was considered and after considering the decisions of, various High Courts on that question it was held that if there was no alternative remedy for seeking the redress which the petitioner seek by a petition, then the bar will not be applicable as the language of Art. 226(3) indicates 'in any other remedy for such redress is provided for'. Apparently, in the scheme of this Act it is not provided that on such questions of law which would be occurring every now and then, the petitioners could seek a decision so that they may not have to prefer an appeal against every order and in the circumstances of the case it is not disputed that orders are passed every now and then in such matter. In this view of the matter, therefore, in our opinion, there was no remedy whereby the petitioners could seek the redress that they seek by this petition for getting the question of law decided and, therefore, the bar of the alternative remedy provided in Art. 226(3) of the Constitution could not be applicable in the present case.

23. In the light of the discussion above, therefore, the petition is allowed. The order passed by Respondent No. 3 dated 20-3-1975 is quashed and it is directed that the Respondent No. 3 shall assess the value for the purpose of computation of excise duty in the light of the decision of this petition excluding the price of the containers and excluding the freight and transportation charges, if any. In the circumstances of the case parties are directed to bear their own costs. Security amount be refunded to the petitioners after verification.


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