Full Judgment Text
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PETITIONER:
TEXMACO LTD.
Vs.
RESPONDENT:
COLLECTOR OF CENTRAL EXCISE, CALCUTTA
DATE OF JUDGMENT31/07/1991
BENCH:
VENKATACHALLIAH, M.N. (J)
BENCH:
VENKATACHALLIAH, M.N. (J)
AGRAWAL, S.C. (J)
CITATION:
1992 AIR 1801 1991 SCR (3) 323
1991 SCC Supl. (2) 305 JT 1991 (6) 180
1991 SCALE (2)755
ACT:
Central Excise Rules, 1944 Rule 8---Notification No.
120/75 CE- D/--30.4.1975--Clause (iv)--Exemption from levy
of duty--Value of wheel sets supplied by Railways--Whether
exempted.
HEADNOTE:
The appellant pursuant to contracts entered into with
the Railway Administration fabricated and delivered to the
Railways wagon-bodies mounted on "wheel sets" supplied by
the Railways.
The appellant’s invoices, reflected only the price of
the wagonbodies without including the value of the "wheel-
sets" on which the wagon-bodies were mounted. The goods were
cleared for purposes of Excise duties on such invoice-value.
The Revenue raised demand for recovery of short-levy and
sought to recover the unpaid duty on the value of the
"wheel-sets" also.
The claim for recovery of the short-levy having been
adjudicated against the appellant, appeals were filed before
the Tribunal, by the appellant contending that the goods
manufactured by the appellant were only the wagon-bodies
mounted on the "wheel-sets" supplied by the Railway Adminis-
tration; and therefore, the assessable value could only be
the value of the wagon-bodies excluding the "wheel-sets"
supplied by the Railways; and that at all events the value
in excess of the ’invoice value’ which represented the price
of the wagon-bodies was exempt from levy of duty under the
Exemption Notification No. 120/75CE dated 30th April, 1975
issued under Rule 8 of the Central Excise Rules, 1944.
The Tribunal dismissed the appeals, against which, the
present appeals were filed before this Court.
The appellant contended that the Tribunal misdirected
itself in law in its construction of the exemption Notifica-
tion and in its reasoning that there was something in Clause
(iv) of the Notification which detracted from the permissi-
bility of its benefit in the present case; that
324
it was erroneous to read the condition as requiring the
’invoice value’ to be the full commercial price of the goods
including therein the value of the "wheel-sets"; that the
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very purpose of the exemption was to relieve the manufactur-
er from bearing the burden of the duty on such part of the
assessable-value as did not reflect the value of his supply
and services but represented the value of the "wheel-sets"
supplied by the Railway Administration itself free of
charge.
The Revenue-Respondent contended that Clause (iv) of the
Notification signified and imported the idea of full-value
of the manufactured goods being required to be reflected in
the invoice and that the reasoning of, and the conclusion
reached by, the Tribunal was correct.
This Court allowing the appeals,
HELD. 1. The Notification posits and predicates the
possibility that the invoice-value’ could be lesser than the
"assessable-value" and, taking into account the need to
mitigate the hardship on the manufacturer of being called
upon to pay duty on the value in excess of the invoice
value, seeks to exempt the manufacturer from payment of duty
"inexcess of the duty" calculated on the basis of the ’i-
nvoiceprice’. [328G-H]
2. The way in which the Tribunal looked at the Notifica-
tion is neither good sense nor good law. Such construction
would make the Notification and the exemption contemplated
thereunder meaningless. The need for the exemption arose in
view of the fact that "assessablevalue" was higher than the
’invoice-value’. Requiring the former and the latter to be
the same as something compelled by Clause (iv) is really to
construe the Notification against itself. [329B-C]
3. In this case, there is no dispute that the invoice
price represented the value of the wagons, less the value of
the "wheel-sets" supplied by the Railways. The invoice-price
could not be required to include the value of the "wheel-
sets". But the "assessable-value" would take into account
the full commercial value including that of the "wheel-
sets". 1t is in order to mitigate the hardship that may
arise by requiring the manufacturer to pay duty on this
difference in such cases that the Notification No. 120/75
came to be promulgated. [328H-329B]
4. There is nothing in Clause (iv) which enjoins upon
the appellant to include the value of the "wheel-sets". The
contract between the parties does not also require this.
[329B]
325
M/s. Burn Standard Company Ltd. & Anr. v. Union of India
JUDGMENT:
&
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5969-70
(NM) of 1990.
From the Order dated 21.8.1990 of the Customs, Excise
and Gold (Control), Appellate Tribunal, New Delhi in Appeal
Nos. ED/SB/T/945/80-A and ED/SB/T/A. No. 586/81-A (Order No.
1284 to 1286/90-A.).
Dr. Debi Paul, Harish Salve, Darshan Singh, Ms. Suman J.
Khaitan and Ms. Priya Hingorani for the appellant.
A. Subba Rao for the Respondent.
The following Order of the Court was delivered:
These appeals arise out of and directed against the
common appellate order dated 21.8.1990 of the Customs,
Excise and Gold (Control) Appellate Tribunal, New Delhi
(’Tribunal’ for short) m’ Appeals Nos. ED/SB/T 945/80A and
ED/SB/T/586/8 1A. By the same order another appeal of the
appellant was also disposed of but that matter is not car-
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ried up in appeal here.
2. The appellant, M/s. Texmaco Ltd., pursuant to con-
tracts entered into in this behalf with the Railway Adminis-
tration fabricated and delivered to the Railways wagon-
bodies mounted on "wheel sets" supplied by the Railways. The
invoices raised by the appellant respecting these wagons
reflected only the price of the wagon-bodies without includ-
ing the value of the "wheel-sets" on which the wagon-bodies
were mounted. The goods were cleared for purposes of Excise
duties on such invoice-value. The Revenue raised demand for
recovery of short-levy and sought to recover the unpaid duty
on the value of the "wheel-sets" also. This claim for recov-
ery of the short-levy having been adjudicated against the
appellant, an appeal was taken before the Tribunal.
3. Before the Tribunal, it would appear, two contentions
were raised: First that the goods manufactured by the appel-
lant were only the wagon-bodies mounted on the "wheel-sets"
supplied by the Railway Administration and that, therefore,
the assessable value could only be the value of the wagon-
bodies excluding the "wheel-sets"
326
supplied by the Railways and, secondly, that at all events
the value in excess of the ’invoice value’ which represented
the price of the wagonbodies was exempt from levy of duty
under the Exemption Notification No. 120/75-CE dated 30
April, 1975 issued under Rule 8 of the Central Excise Rules,
1944. What is implicit in the second contention is that, but
for the said Notification No. 120/75-CE dated 30.4.1975, the
assessable-value would otherwise require the exclusion in it
the value of the "wheel-sets" also on the premise that the
"wheel-sets" became an integral part of the wagons, even
though the "wheel-sets" had been supplied free of cost by
the Railways themselves. The Notification No. 120/75-CE
exempted "so much of the duty of excise ........ as is in
excess of the duty calculated on the basis of invoice
prices".
4. On the first contention:--that the ’assessable-value’
of the ’goods’ could not include the "wheel-sets" which were
not fabricated or manufactured by the appellant, the Tribu-
nal, rejecting the contention said:
"On going through the facts and in view of the
clear findings given by the lower authorities
that no wagon is complete without the wheels;
what has been cleared and removed by the
appellants is the wagon mounted on wheel sets
and not the wagon body alone ....
On the issue of determination of
assessable value, the Supreme Court has held
that for the purpose of levy of excise duty,
the value of the article is the full intrinsic
value of the article inclusive of the cost of
the materials and components supplied free by
the customer and irrespective of the fact that
no expenditure was incurred by the manufactur-
er on such components."
No fault can be found with this reasoning of the Tribunal,
indeed, considerations of ownership of the goods are extra-
neous to levy of duties of excise which are imposts on
manufacture.
5. The second contention on which Dr. Pal laid particu-
lar emphasis, indeed, assumes the correctness of the first
proposition and claims exemption on the strength of the
Notification No. 120/75-CE. That Notification says:
"The Central Government has exempted goods
falling
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327
under Item No. 68 of the First Schedule to the
Central Excises and Salt Act, 1944 (1 of
1944), cleared from the factory of manufac-
ture, on sale, from so much of the duty of
excise leviable thereon as is in excess of the
duty calculated on the basis of the invoice
price (excluding duty and local taxes, if any,
included in such price) charged by the manu-
facturer for the sale of such goods:
Provided that the aforesaid exemp-
tion shall be admissible only if--
(i) the manufacturer files with the Superin-
tendent of Central Excise having jurisdiction
a written declaration to the effect that he
opts to avail of the said exemption:
(ii) Omitted as unnecessary
(iii)
(iv) the invoice price is not influenced by
any commercial, financial or other relation-
ship whether by contract or otherwise between
the manufacturer or any person associated in
business with the manufacturer and the buyer
other than the relationship created by sale of
the aforesaid goods:
(v) Omitted as unnecessary.
Provided ... (Omitted as unnecessary)
The Tribunal also rejected the claims for exemption under
the Notification. It said:
"We are unable to agree with the
arguments of the appellants’ counsel that
assessable value of the article is different
from the consideration received by the appel-
lants to claim benefit under Notification
120/75.
..... To claim exemption on benefit under
Notification 120/75 it should be subjected to
in compliance with the conditions specified
therein. Condition No. IV of Notification No.
120/75 required that the invoice value should
be
328
the full commercial price of the article.
According to the decision of the Supreme Court
(supra) the value of the article is the in-
trinsic value and not restricted consideration
received by the appellant as urged by the
appellants’ counsel. In the view we have
taken, the appellants are not entitled to
concession under Notification No. 120/75 dated
30.4. 1975 ."
6. Dr. Pal appearing in support of the appeals urged
that the Tribunal misdirected itself in law in its construc-
tion of the exemption Notification and in its reasoning that
there was something in Clause (iv) of the Notification which
detracted from the permissibility of its benefit in the
present case. Dr. Pal said that it was erroneous to read the
said condition as requiring the ’invoice value’ to be the
full commercial price of the goods including therein the
value of the "wheelsets". Dr. Pal said that clause (iv) did
no more than merely importing the requirement that the
invoice price should reflect a transaction at arms’ length
and not that appellant’s invoice-price should also include
the value of the "wheel-sets" supplied by the Railways. Dr.
Pal further urged that the very purpose of the exemption was
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to relieve the manufacturer from bearing the burden of the
duty on such part of the assessable-value as did not reflect
the value of his supply and services but represented the
value of the "wheel-sets" supplied by the Railway Adminis-
tration itself free of charge. If Clause (iv) was construed
in the way in which the Tribunal did, the effect, counsel
said, would be to take away with one hand what the notifica-
tion gave with the other.
7. Shri Subba Rao, learned counsel for the Revenue, with
his usual tenacity contended that Clause (iv) of the Notifi-
cation signified and imported idea of full-value of the
manufactured goods being required to be reflected in the
invoice and that the reasoning of, and the conclusion
reached by, the Tribunal was correct.
8. On a consideration of the matter we are afraid the Tribu-
nal fell in to an error in its understanding of the notifi-
cation. The Notification posits and predicates the possibil-
ity that the ’invoice-value’ could be lesser than the
"assessable-value" and, taking into account the need to
mitigate the hardship on the manufacturer of being called
upon to pay’ duty on the value in excess of the invoice
value, seeks to exempt the manufacturer from payment of duty
"in excess of the duty calculated on the basis of the ’i-
nvoice-price’. There is no dipute in this case that the
invoice price represented the value of the wagons, less the
value of the "wheel-sets" supplied by the Railways. The
invoice-price
329
could not be required to include the value of the "wheel-
sets". But the "assessable-value" would take into account
the full commercial value including that of the "wheel-
sets". It is in order to mitigate the hardship that may
arise by requiring the manufacturer to pay duty on this
difference in such cases that the Notification No. 120/75
came to be promulgated. There is nothing in Clause (iv)
which enjoins upon the appellant to include the value of the
"wheel-sets". The contract between the parties does not also
require this. The way in which the Tribunal looked at the
Notification is neither good sense nor good law. Such con-
struction would make the Notification and the exemption
contemplated thereunder meaningless. The need for the exemp-
tion arose in view of the fact that "assessable-value" was
higher than the ’invoice-value’. Requiring the former and
the latter to be the same as something compelled by Clause
(iv) is really to construe the Notification against itself.
9. Shri Subba Rao placed strong reliance on the pro-
nouncement of this Court in M/s. Burn Standard Company Ltd.
& Anr. v. Union of India & Ors., [1991] 3 Judgments Today
108. On the contentions raised and argued in that case the
judgment, if we may say so with great respect, is correct.
The question of the effect of the exemption Notification No.
120/7.5-CE was not raised and argued in that case. That
apart, the exemption Notification itself makes it clear that
it does not apply or is attracted to every case automatical-
ly, but that the manufacturer should expressly opt for the
benefit of the Notification. Since no such claim was made in
that case, the decision therein is of no assistance to the
revenue.
10. We accordingly allow these appeals; set aside the
order of the authorities as well the affirming order of the
Tribunal under appeal and hold that the appellant was enti-
tled under the said Notification No 120/75/CE, to exemption
from that part of the duty as was in excess of the invoice-
price which, we hold, was not required to include the value
of the "wheel-sets".
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V.P.R. Appeals allowed.
330