AURANGABAD PAPER MILLS LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a writ petition in which the petitioner No. 1, Company which deals in manufacture of various types of paper has claimed that the benefit of exemption from the excise duty under the Notification dated 18 - 6 - 1977 must go to the petitioner No. 1 Company although in the value of the product charged to the customers full excise duty is included. After the petitioner Company availed of the benefit of exemption of 60% paying only 40% excise duty for the period January 1979 to July 1979, the Excise Department issued show cause notices to the petitioner Company, in all seven, in respect of the above period. The petitioner challenged the same by filling an appeal before the Collector of Central Excise. The appellate authority rejected the contention of the Company that even if the full excise duty is included in the value chargeable to the customers, the Company is entitled to get benefit of exemption under the Notification dated 18 - 6 - 1977. The petitioner Company has, therefore, challenged the aforesaid order in this petition.

(2.) The contention raised on behalf of the petitioners that the Company is entitled to full benefit of the concession or the exemption given in the Notification dated 18 - 6 - 1977 without passing the same to the customers stands concluded by the two judgments of this Court. The first judgement is of the learned single Judge of this Court in the case of B.K. Paper Mills Pvt. Ltd. v. Union of India and others, 1984 18 ELT 701 (Bom.)]. The view taken by the learned Single Judge is approved and followed by a Division Bench of this Court (Nagpur Bench) in a group of writ petitions bearing Writ Petition Nos. 2500 of 1982 with Writ Petition NOs. 1837 of 1983, 2250 of 1983, 779 of 1983, 1928 of 1982, 2275 of 1983. M/s. The Central India Spinning Weaving and Manufacturing Company Ltd. V/s. the Union of India, 1987 30 ELT 217 decided on 29 - 1. It is held in the aforesaid judgement that the assessable value under Section 4 means the normal price as per the price list submitted by the Company excluding the effective duty which it is permissible for the company to charge. It would be clear from the aforesaid judgement that in the Explanation to Section 4(4)(d)(ii) what the effective duty of excise means is given. The said Explanation was added by way of amendment through Sec. 47 of the Finance Act, 1982 and has been given retrospective effect from 1 - 10 - 19075. In view of the above Explanation, the position is no more in doubt. The assessable value upon which the excise duty will be levied would be the value as per the price list submitted by the company excluding the effective duty which means the duty which is prescribed under the Act minus the exemption granted in regard to the same. In view of the above decisions of this Court, the contention raised on behalf of the petitioners deserves to be rejected.

(3.) The learned Counsel for the petitioners wanted to raise before us another contention regarding promissory estoppel. No such contention is raised by the petitioner in the petition. The question about promissory estoppel is a question of fact which must be pleaded in the petition. Even otherwise, there is no merit in the contention because the exemption is claimed under the Notification issued under Rule 8 and at the time of claiming the exemption, an undertaking is given that they would be liable to pay full excise duty if so determined by the Department. There is thus no merit in the above contention about the promissory estoppel, which also adserves to be rejected.