Punjab-Haryana High Court
Rajaram Corn Products (Punjab) Private ... vs Superintendent, Central Excise Range ... on 5 November, 1985
Equivalent citations: 1986(9)ECC210, 1986(23)ELT291(P&H)
JUDGMENT I.S. Tiwana, J.
1. The petitioner concern manufactures liquid glucose and supplies the same either in the drums provided for by the customers or in its own drums. In the latter case the cost of the drum is included in the price of the goods sold. An additional security for the return of the drum by the customer is kept inasmuch as a remark is added to the sale invoice that a fixed sum of Rs. 136/- per drum will be charged (or refunded) in case the empty drum is not returned (or returned) in intact condition. It is the conceded position that most of (he time the drums have been returned by the buyers to this petitioner. However, the Assistant Collector Customs and Central Excise through his various orders charged duty for the period July 28, 1981 to February 22, 1982 on the basis of the cost of the drums which had not been returned to the petitioner. The petitioner challenged these orders before the Collector (Appeals) Central Excise, New Delhi and he while allowing the same vide his common order dated July 13, 1983 (Annexure P. 3) held that the actual non-return of the drums did not detract anything from the returnable character of the drums and since those drums were of durable nature and of the drums and of returnable character, the petitioner stood exempted from the levy of this duty. This order of the Collector is now stated to be the subject matter of an appeal under Section 35B of the Central Excises and Salt Act, 1944, before the Appellate Tribunal which is still pending.
2. Subsequent to the period covered by the appellate order of the Collector, Annexure P. 3, the Assistant Collector has issued similar notices to the petitioner for charging the duty on the cost of the drums which have not been returned to the petitioner. The petitioner now impugns these notices which are Annexures P. 7 and P. 8 on the records of this petition on the same very grounds as was done in the appeals before the Collector. The main plea of the petitioner is that since the Collector has already expressed his opinion that no excise duty is leviable on the cost of the drums in which the liquid glucose is supplied by the petitioner to its various customers, the impugned notices are totally without jurisdiction. All that is contended in reply to this stand of the petitioner by Mr. Brar, learned counsel for the respondent authorities is that order Annexure P. 3 has not assumed finality as it is the subject-matter of an appeal before the Appellate Tribunal and in view of that the action of the Assistant Collector in issuing the impugned notices cannot be held to be contrary of law.
3. Having heard the learned counsel for the parties at some length I am of the view that it would be fair to both the sides if the Assistant Collector is restrained from levying the excise duty on the cost of the drums till the final disposal of the appeal against the order of the Collector, Annexure P. 3, by the Appellate Tribunal. There is no gainsaying that the departmental authorities would be as much bound by the said order of the Tribunal as the petitioner would be. This, however, does not affect the right of the Assistant Collector to keep on issuing demands to the petitioner till the final disposal of the above noted appeal. To clarify the matter it may be stated here that what the Assistant Collector would not do till the decision of the appeal by the Tribunal against the order Annexure P. 3 is that no duty would actually be levied and recovered from the petitioner. I pass no order as, to costs.