G.G. Sohani, J.
1. This is a petition under Article 226 of the Constitution of India.
2. The material facts giving rise to this petition briefly are as follows :-
Petitioner No. 2 is the Managing Director of petitioner No. 1, a Private Limited Company, registered under Indian Companies Act 1956, which carries on business of manufacture of paints, synthetics and allied products at Indore. Excise Duty is payable on the products manufactured by the petitioner Company, in accordance with the provisions of the Central Excises and Salt Act, J 944 (hereinafter referred to as 'the Act'). In accordance with the provisions of Sub-rule (1) of Rule 173C of the Central Excise Rules (hereinafter referred to as 'the Rules') the petitioner Company filed a list showing the price of the goods manufactured by it. According to the petitioners, under a mistaken belief, they had showed price which included expenditure incurred in connection with sale and paid duty assessed on the goods accordingly. The petitioners have averred that sometime in the month of May, 1980, on perusal of the decisions of the Supreme Court, they realised that the levy of excise duty on post-manufacturing cost was illegal. The petitioners, therefore, wrote letters to the Assistant Collector, Central Excise, on 6th June, 1980 and 25th July, 1981 requesting him to approve the new price lists based on manu facturing costs and manufacturing profits. The petitioners also claimed refund of excise duty paid since 17th June, 1977. Respondent No. 2, however, by his letter dated 25th August, 1981, returned the priceiist. The petitioners have, therefore, filed this petition praying that the respondents be directed to accept the revised price list submitted by the petitioner and respondents be restrained from levying excise duty contrary to the provisions of the Act and that they be directed to refund the amount illegally collected.
3. In the return filed on behalf of the respondents, it is contended that excise duty has been recovered in accordance with law. It is further averred that under, Section 4 of the Act, as amended, the assessable value is the value at which the goods manufactured or produced are sold for the first time by the manufacturers from the place of manufacture to a buyer, who is not a related person and that value would constitute the normal wholesale price for the purpose of assessable value, and that the excise duty has been levied and collected on goods manufactured and removed by the petitioners at the assessable value arrived at in accordance with the provisions of Section 4 of the Act. As regards claim for refund, it is urged that the Central Government has prescribed a procedure for claiming refund of excise duty paid in excess and as the petitioners had not adopted that procedure, it was not possible to consider the request for refund. It was admitted that respondent No. 2, Superintendent, Central Excise had returned the price list to the petitioners.
4. To appreciate the contentions urged on behalf of the parties, it is necessary to refer to the material provisions of law. Section 4 of the Act provides for valuation of excisable goods for the purpose of charging duty of excise. Under Section 11B of the Act, any person can claim refund of any duty of excise, by making an application for refund of such duty, to the Assistant Collector, Central Excise, within the period stipulated therefor. Rule 173-C of the Rules, requires the assessee to file price-list of goods assessable ad valorem. Sub-rules (3) and (10) of Rule 173-C are material and are as follows:-
'(3) On receipt of price-list under Sub-rule (2), the proper officer may approve the price-list after making such modification as he may consider necessary, so as to bring the value shown in the said price-list to be the correct value for the purpose of assessment as provided in Section 4 of the Act. He shall, thereafter return one copy of the list approved by him to the assessee who shall, unless otherwise directed by the proper officer, determine the duty payable on the goods intended to be removed in accordance with such list.'
'(10) If the list filed under Sub-rule (1) or approved under Sub-rule (2) or Sub-rule (6), as the case may be, any alteration becomes necessary for any reason, the assessee shall likewise file a fresh list or an amendment of the list filed or approved, as the case may be.'
It is thus clear that the assessee has a right to file a fresh list and on receipt of such fresh list, the proper officer has to proceed to act under Sub-rule (3) of Rule 173-C. In the instant case, it was not disputed before us that the proper officer has not passed any orders on the fresh list as provided by Sub-rule (3) of Rule 173-C of the Rules. The respondents have, therefore, failed to perform this duty.
5. As regards the claim of the petitioners that the duty levied at present by the respondents is not in accordance with the provisions of the Act, we would not like to express any opinion at this stage. If the duty recovered from the petitioners is not in accordance with law, then a procedure is prescribed by the Act for getting relief. For refund of duty alleged to have been illegally recovered from the petitioners, Section 11B of the Act prescribes procedure for refund. No good reason has been pointed out to us for invoking the extraordinary powers of this Court under Article 226 of the Constitution of India.
6. For all these reasons, the petition is partly allowed. The respondents are directed to take action in respect of the fresh list filed by the petitioners, in accordance with law. The petitioners are, however, not entitled to any other relief as prayed for. In the circumstances of the case, parties shall bear their own costs of this petition. The amount of security deposit, if any, shall be refunded to the petitioner.