Madhya Pradesh High Court
Century Cement vs Union Of India (Uoi) And Ors. on 25 November, 1985
Equivalent citations: 1987(11)ECC118, 1987(10)ECR688(MP), 1987(30)ELT81(MP)
Author: J.S. Verma
Bench: J.S. Verma
JUDGMENT
J.S. Verma, Ag. C.J.
1. This order shall also dispose of Misc. Petition No. 2449 of 1983. Both these petitions are between the same parties and involve the same point for decision.
2. The petitioner-company is (a) manufacturer of portland cement. A dispute arose between the parties whether for the period from 1st October, 1975 to 8th January, 1976, the cost of packing in gunny bags could be included in the value for charging excise duty on cement under Section 4(4XdXi) of the Central Excises and Salt Act, 1944. The petitioner's contention that the cost of packing ought not to be included in the value for purpose of charging excise duty on cement being rejected by the respondents, Misc. Petition No. 704 of 1976 was filed in this Court by the petitioner to assail that decision. The petitioner had also paid duty on the cost of packing under protest for the period from 30th October, 1975 to 8th January, 1976, even though no such duty had been paid for the period from 1st October, 1975 to 29th October, 1975. That writ petition was allowed along with another petition involving the same point and the common decision is reported in Birla Jute Manufacturing Co. Ltd. v. Union of India andOrs. (1980 MPLJ 829). One of the contentions urged on behalf of the respondents in that petition to oppose the refund of duty paid by the petitioner on the ground of the objections raised by the respondents to the refund of the duty already paid by the petitioner under protest, was rejected. By the final order made in that petition, the payment of duty on the cost of packing for the period from 1st October, 1975 to 29th October, 1975 was quashed and the petitioner was held en- titled to refund of duty paid on the cost of packing for the period from 30th October, 1975 to 8th January, 1976. This decision was also affirmed by the Supreme Court by refusal of special leave sought by the respondents to appeal against that decision. Admittedly, as a consequence of that decision, refund of duty paid for a part of the period under protest by the petitioner has been made.
3. A show cause notice, Annexure-A, dated 15th July, 1983, issued by the Assistant Collector, Central Excise, Raipur, and another show cause notice, Annexure-B, dated 5th August, 1983, issued by the Superintendent, Central Excise, Raipur, in Misc. Petition No. 2151 of 1983 and also show cause notice, Annexure-A, dated 14th September, 1983 issued by the Assistant Collector in Misc. Petition No. 2449 of 1983 require the petitioner to show cause once again why reassessment of the value on which excise duty is payable by the petitioner-company should not be made. These show cause notices are challenged in these two petitions and together cover the entire period from 1st October, 1975 to 8th January, 1976. The two sets of notices are to cover the two periods between these dates for which the duty was not paid or was paid under protest.
4. The petitioner's contention is that the respondents have no authority to reopen the matter which has been concluded by the earlier decision and commencement of fresh proceedings to supersede judicial determination of the points between the parties is clearly without the authority of law. It is on this basis that the petitioners seek to quash all these show cause notices.
5. The respondents, in reply, placed reliance on Section 47 of the Finance Act, 1982, by which Sub-clause (ii) of Clause (d) of Sub-section (4) of Section 4 of the Central Excises and Salt Act, 1944, was amended and the consequence of the amendment was also provided. The respondents' contention is that by virtue of this amendment made in Section 4(4)(d)(ii) of the Central Excises and Salt Act, 1944, by Section 47 of the Finance Act, 1982, the effect of the earlier decision is superseded and the respondents are entitled to reopen the matter for making a fresh assessment of the value in accordance with which excise duty is payable by the petitioner. The only question in both these petitions is whether the respondents' contentions is correct. It is obvious that unless this plea is upheld, the petition must be allowed.
6. The above facts are not in controversy and the only question is whether on these facts, Section 47 of the Finance Act, 1982 is available to the respondents. In our opinion, a plain reading of this provision is sufficient to indicate that this contention is untenable. As indicated earlier, the dispute between the parties relating to inclusion of the cost of packing in gunny bags, which was decided on the earlier occasion, was under Section 4(4)(d)(i) of the Central Excises and Salt Act, 1944, and not Section 4(4)(d)(X)(ii). That controversy has ended by the judicial determination up to the Supreme Court in petitioner's favour. By-Sub-section (1) of Section 47 of the Finance Act, amendment is made in Section 4(4)(dXii) of the Central Excises and Salt act, 1944, and not Section 4(4)(d)(i) which was the point in controversy between the parties. Sub-section (2) of the Section 47 of the Finance Act, 1982, provides for the consequence resulting from the amendment made by Sub-section (1) thereof, or in other words, the amendment made in Section 4(4)(d)(ii) of the Central Excises and Salt Act, 1944. It is, therefore, obvious that the provisions contained in Section 47 of the Finance Act, 1982, on which reliance is placed by the respondents, is not available in the present case on the facts which are not in controversy. The respondents' contention is, therefore, rejected.
7. Consequently, both these petitions are allowed with costs. The show cause notices, Annexure-A, dated 15th July, 1983, issued by the Assistant Collector, Central Excise, Raipur, and Annexure-B, dated 5th August, 1983, issued by the Superintendent, Central Excise, Raipur, in Misc. Petition No. 2151 of 1983, and Annexure-A, dated 14th September, 1983, issued by the Assistant Collector, Central Excise, Raipur, in Misc. Petition No. 2449 of 1983 are quashed. Counsel's fee Rs. 200/-, if certified, in each case. The security amount, if any, be refunded to the petitioners in each case.